Yes, it is extremely critical for both parties to get Independent Legal Advice (ILA) from separate lawyers when signing a Marriage Contract in New Brunswick. Without a Certificate of ILA, a judge at the Court of King’s Bench could later declare the entire agreement invalid due to unfairness or lack of understanding.
When couples in Saint John or Moncton decide to sign a prenuptial agreement (legally known as a Marriage Contract), they often look for ways to keep costs low. A very common question is whether they can simply share one lawyer or skip professional legal advice altogether to save a few dollars.
While downloading a cheap template off the internet might seem incredibly tempting, it is one of the biggest financial risks you can take. Family law in New Brunswick strictly emphasizes fairness and transparency. In this guide, we will break down exactly why Independent Legal Advice is mandatory if you want an agreement that will actually hold up in court.
Step-by-Step Process for Getting ILA in New Brunswick
A lawyer has a strict ethical duty to protect the best interests of their client. Because a Marriage Contract involves giving up certain rights under the Marital Property Act, one lawyer simply cannot protect two people who have competing financial interests. Here is how the process works correctly.
Step 1: One Spouse Hires the Drafting Lawyer
The process begins when one spouse hires a family lawyer to draft the initial document . This lawyer will gather all the necessary financial disclosure, listen to what their client wants to protect, and write the formal contract. This drafting lawyer strictly represents only one spouse.
Step 2: The Other Spouse Hires a Separate Lawyer
Once the draft is ready, the second spouse must take the document to an entirely different law firm. This is where Independent Legal Advice (ILA) happens. The second lawyer will read the contract thoroughly and explain exactly what the legal jargon means in plain English. They will explain exactly what rights their client is giving up regarding spousal support or property division.
Step 3: Negotiating Any Unfair Terms
If the second lawyer spots completely unreasonable clauses-for example, a clause that leaves one spouse absolutely destitute if the marriage ends-they will strongly advise their client not to sign it 🔍. The two separate lawyers will then negotiate back and forth to amend the contract until both sides feel the agreement is reasonably fair and balanced.
Step 4: Signing the Certificate of ILA
Once both partners are completely satisfied with the final draft, they will meet with their respective lawyers to sign the document in front of witnesses. The most important part of this meeting is the lawyer signing a Certificate of Independent Legal Advice. This piece of paper proves to the court that the spouse fully understood the deal and was not pressured, blackmailed, or tricked into signing it.
What Happens if You Skip ILA?
If you decide to skip getting independent legal advice, your contract is deeply vulnerable. Here is how the courts view it:
| The Issue | How the Court Views It |
|---|---|
| Claims of Duress | If one spouse claims they were forced to sign right before the wedding, the lack of ILA makes it very easy for a judge to believe them and cancel the contract. |
| Failure to Understand | Legal contracts are complex. Without ILA, a spouse can successfully argue they did not realize they were giving up thousands in spousal support. |
| Hidden Assets | Lawyers ensure full financial disclosure happens. Skipping ILA often means one party hid assets, which is grounds for immediately throwing out the agreement. |
How Much Does ILA Cost in New Brunswick?
While hiring a second lawyer is an extra expense, it is a necessary insurance policy for your wealth:
- Basic ILA Fee: For a straightforward, simple agreement, a lawyer in New Brunswick will generally charge between $500 CAD and $800 CAD just to review the document and provide the certificate.
- Negotiation Fees: If the contract is highly complex or unfair, and the second lawyer needs to spend hours negotiating changes, the cost can easily rise to $1,500 CAD or more.
- Who Pays? It is entirely legal and quite common for the wealthier spouse to actually pay the legal bill for the other spouse’s ILA, as long as the lawyer remains completely independent.
How Long Does the Process Take?
You should never rush Independent Legal Advice. Once the initial draft is handed over, the reviewing lawyer usually needs 1 to 3 weeks to thoroughly read it, schedule a meeting with their client, and discuss the terms. Rushing this process a few days before a wedding is highly discouraged and can look exactly like undue pressure in the eyes of a judge.
Frequently Asked Questions (FAQ)
Can we just use two lawyers from the same law firm?
No. Using two lawyers from the same firm is considered a major conflict of interest. To ensure true independence, your spouse must hire a lawyer from an entirely separate law office.
What if my spouse absolutely refuses to get ILA?
If your spouse refuses to hire a lawyer despite your warnings, you should have your lawyer draft a specific waiver acknowledging that they were offered the chance to get ILA but stubbornly declined. However, even with a waiver, the contract is still at a much higher risk of being challenged later.
Does getting ILA guarantee the contract will hold up?
While nothing in law is a 100% guarantee, getting ILA makes your Marriage Contract incredibly strong. A judge will very rarely overturn a contract if both parties had excellent legal representation and provided honest financial disclosure.
Can ILA help protect me from giving up my child support rights?
Yes, and an ILA lawyer will quickly inform you that parents cannot legally waive child support in a Marriage Contract anyway. Child support is the right of the child, and any clause attempting to cancel it in New Brunswick is automatically void.
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