Whether it is a cohabitation agreement, marriage agreement (prenuptial or postnuptial), or a separation agreement, attempting to create one without legal advice carries significant risks.
While there are many drawbacks to creating a DIY family law agreement, this post highlights two key risks:
1) inadequate understanding of one’s legal rights and responsibilities, and
2) the possibility that the agreement may not belegally enforceable.
Inadequate understanding of one’s legal rights and responsibilities:
The first important risk of creating a DIY family law agreement is the potential to unknowingly waive important legal rights or take on obligations you aren’t required to assume. A family law agreement is a legally binding contract, and failing to understand its terms and implications can lead to serious legal issues if you fail to comply. Misunderstanding or misinterpreting your rights, obligations, and terms of the agreement can lead to serious consequences and may ultimately result in higher financial or legal costs.
The agreement maynot be legally enforceable:
Another risk of creating a family law agreement without the advice of a lawyer is that the courts may vary or set aside such an agreement. As a result, a DIY agreement that is deemed unenforceable becomes ineffective.
For example, section 93 of the Family Law Act outlines the circumstances under which agreements for division of property and debt may be set aside. One such circumstance listed is when a spouse did not understand the nature or consequences of the agreement. It is much harder to argue a lack of understanding if the individual obtained independent legal advice. Similarly, section 164 of the Family Law Act contains comparable provisions for setting aside agreements related to spousal support.
Another common reason family law agreements are set aside is when the parties fail to provide full and proper disclosure of information relevant to the negotiation. This risk of inadequate disclosure is significantly greater when legal advice is not sought.
Conclusion
In summary, before signing a family law agreement, it is highly recommended to obtain independent legal
advice. This means each person should consult with their own separate lawyer and receive advice accordingly. While obtaining independent legal advice is not a requirement, it is strongly encouraged because it helps ensure that everyone fully understands their rights, obligations, and the legal consequences of the agreement.
While a DIY family law agreement may appear simple and cost-effective, there are important risks to consider that could end up costing you more in the long run. As discussed above, creating your own family law agreement, without the assistance and advice of a lawyer can lead to serious problems and may result in an unenforceable contract. In contrast, consulting a lawyer provides greater protection and helps ensure that your agreement is valid and enforceable.