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ILA: Independent legal advice and how it works

what is independent legal advice timothy sullivan

“I had a marriage contract drawn up by my lawyer. My lawyer said my fiance needs to get independent legal advice before she signs it. What does that mean and entail?”

First of all, your lawyer is right: Before your fiance signs a marriage contract or cohabitation agreement that has been prepared at your direction by your lawyer, s/he should get independent legal advice. This doesn’t just protect your fiance, by the way – it also protects you. If, at some point in the future, the marriage or cohabitation breaks down and you end up in court, the fact that your fiance got independent legal advice prior to signing the agreement means that there is less likelihood of the agreement being put aside or challenged.

How does Independent Legal Advice (ILA) work? 

The importance of independent legal advice is to assure all the parties that unemcumbered legal advice has been provided to the client. The lawyer providing ILA must be assured that the advice is in fact independent (there is no conflict of interest with the other signing party), the advice is in fact legal (the opinion letter covers this and includes the formalities of the agreement and the appropriateness of the content) and the advice is whether the agreement meets the client’s needs from a legal point of view.

A lawyer would meet with the client, confirm the client’s identity, receive the contract, review it and finalize an opinion letter. The lawyer could attend with the client to witness the client’s signature and remit signed agreements to the client, the other party or the other party’s lawyer.

Then a Certificate of ILA is provided, confirming that advice was provided. However, the content of the advice is privileged between the client and the lawyer. In other words, your fiance could provide you with copy of the Certificate of Independent Legal Advice, but neither s/he nor the lawyer s/he engaged needs to disclose whatever was said in communication with the lawyer.

How much will independent legal advice cost?

A properly executed Certificate of ILA typically represent about three hours of a lawyer’s time, depending on the extent of the draft agreement and its complexity.  This includes meeting with the client, reviewing the documentation, reporting to the client and attending to the execution of the agreement (the signing of the document and witnessing). In my experience, lawyers generally charge an hourly rate for this work.

It’s important to note that a more complex marriage or cohabitation agreement – if there is significant property outside of a family home, if children are involved, or if the agreement is to set out specific details about spousal support in the event of a relationship breakdown – independent legal advice may require more time, and the lawyer’s fee will reflect this.

(Don’t be afraid to ask your lawyer about fees at the outset. The more both of you know about fees and what’s involved, the more successful all your interactions will be.)

Important: In my practice regarding ILA, payment for ILA must come from the client, and not from the person who drew up the contract or another party. I must have assured that it is the client – in this case, your fiance – hiring me, not another interested party, however apparently benevolent. Payment for services rendered must come from the client to demonstrate that it has been independently selected and managed.

More questions?  Don’t hesitate to contact us.

This blog is provided for educational purposes only and should not be construed as specific legal advice. This blog should not be used as a substitute for competent legal advice from a licensed lawyer in your province.