At least twice this past week I was talking with someone about an agreement that they had apparently reached with their former spouse, and they wanted to know about “getting it notarized”. Apparently, both believed that having their agreement notarized somehow made it, “more legal”.
Getting it “notarized” is also commonly seen as a convenient, and cost effective, way to enter into an agreement without the need to involve lawyers, and the associated cost.
Unfortunately, as much as I respect the notarial profession, such an approach is deeply flawed, and here’s why;
Firstly, having an agreement, such as a Separation Agreement notarized, simply means that the person signing the agreement is the actual person whose name appears on the signature line. Because notaries do not provide legal advice, having an agreement notarized does not mean that the parties signing the agreement understood what they were signing, and most importantly the potential adverse legal consequences. Nor does simply signing confirm that there was no undue influence, or improper pressure, on one of the parties by the other, or reflect there was appropriate disclosure, and above, all fairness.
The lack of one, or more, of these essential elements means there will always remain the possibility that one of the parties may sometime in the future bring an application to have the terms of the agreement set aside. The perfect recipe for sleepless nights.
So what’s to be done to help ensure the agreement is both enforceable, and not likely to be set aside in the future?
As you may suspect, it means obtaining independent legal advice before signing. Typically, most family law agreements, such as Separation Agreements, will include a Certificate Of Independent Legal Advice. The lawyer assures themselves that you know exactly what you are signing, that there has been appropriate financial disclosure, that the agreement is fair, and that you understand the legal consequences. The lawyer will also confirm with you that there has been no improper, or undue influence, compelling you to sign. Once so assured, the lawyer will sign the Certificate, and you will also sign, acknowledging that you understand, and agree, with your lawyer’s assessment.
The advantage of a signed Certificate means it is highly unlikely that one party will be successful with an application to set the agreement aside, and start over. Best of all, no more sleepless nights, worrying about what might happen.
Sleep well, my friend. If Not Call Scott Taylor, 604.534.6361
