By Nina Fernando, Articling Student at Step By Step Law Corporation August 25, 2025
When entering into a family law agreement, whether it’s a cohabitation agreement, separation agreement, or marriage contract, many clients wonder if they must obtain independent legal advice (ILA). While the Family Law Act (FLA) of British Columbia does not expressly require ILA for an agreement to be enforceable, courts routinely emphasize its value when determining whether such agreements should be upheld.
When entering into any agreement it’s essential to understand your rights and obligations. One of the most important steps you can take before signing the contract is to obtain ILA.
What Is Independent Legal Advice?
Independent Legal Advice means you meet with your own lawyer (not one shared with the other party), who will:
- Review the agreement with you,
- Explain your legal rights and obligations,
- Discuss what you are giving up or gaining,
- Confirm that you’re signing voluntarily and without pressure, and
- Provide an opinion on whether the agreement is in your best interest.
This is why one lawyer cannot advise both parties, it would be a conflict of interest. Even if a mediator (who might also be a lawyer) helped you reach the agreement, they must remain neutral and cannot provide you with legal advice. ILA ensures that the advice you receive is impartial, informed, and tailored to your specific situation.
What the Family Law Act Says
Under section 6 of the Family Law Act (FLA), parties can enter into valid agreements with or without a lawyer.
But under section 93 of the FLA, a court can set aside an agreement if it finds that:
- A person failed to disclose significant property or debts or other relevant information,
- A person didn’t understand the nature or consequences of the agreement,
- One person took improper advantage of the other’s vulnerability
- Other circumstances that would, under the common law, cause all or parts of a contract to be voidable, or,
- The agreement is significantly unfair,
The real question is whether the agreement will be enforced by a court, particularly if one party later seeks to challenge it. Here, ILA becomes crucial – it shows the court that both parties had the opportunity to fully understand what they were signing.
Without ILA, an agreement may be vulnerable to claims of duress, undue influence, unconscionability, or procedural unfairness under s. 93(3) of the FLA.
Why Courts Care About ILA
While ILA is not mandatory, ILA can significantly increase the enforceability of a family law agreement by helping courts assess whether it was entered into freely, fairly, and with informed consent. Judges will look at whether both parties:
- Understood their legal rights and obligations,
- Were aware of what they were giving up or gaining – in terms of legal rights,
- Experienced any undue pressure or power imbalance,
- Were making informed decisions based on accurate information.
(Bradshaw v. Bradshaw, 2011 BCSC 1103, at para 49 and B.L.S. v D.J.S, 2019 BCSC 846, at para 279)
Since family law agreements are legally binding contracts that affect major areas like parenting, property, and support, it’s crucial to understand what you’re agreeing to. These agreements are often lengthy, detailed, and include legal language or standard clauses that may be difficult to interpret without legal training. If one or both parties do not obtain legal advice, there’s a higher risk of needing to go to court to change the agreement later. A judge may even set it aside if one person applies to vary or cancel it on the basis that they didn’t fully understand what they were agreeing to.
At Step By Step Law, we provide ILA on agreements to help you understand your rights and responsibilities before signing any binding agreement that could impact your future.
What the Case Law Says
B.C. courts have made it clear that ILA strengthens agreements:
- Bradshaw v. Bradshaw, 2011 BCSC 1103
The court said ILA helps ensure both parties are aware of their rights and that it “minimizes disparity of bargaining power.” - B.L.S. v. D.J.S., 2019 BCSC 846 and Y.L. v. G.L., 2020 BCSC 808
Courts confirmed that having ILA makes it more likely an agreement will be considered procedurally fair. - C.C. v. S.P.R., 2022 BCSC 1817
The court enforced an agreement even without ILA, but only because it was fair on its own and the parties clearly understood it. This shows that ILA is not always determinative, but it is a factor that the courts consider. . - Gurney v. Gurney, 2000 BCSC 6
The court stressed that good ILA goes beyond a quick review. A lawyer must dig into the circumstances, explain the legal rights at stake, and give an honest opinion on whether signing is appropriate.
What Good ILA Should Include
A strong ILA meeting should cover:
- Full review of the agreement – clause by clause, explained in plain language.
- A lawyer asking about your entire circumstances.
- Comparison with the law – what your rights would be without the agreement.
- Fairness check – whether the terms are reasonable in your situation.
- Practical advice – how the agreement will affect your finances, property, or parenting in the long run.
If you are entering into a family law agreement, obtaining ILA is one of the best ways to protect yourself, both legally and practically. It ensures you understand the consequences of your decisions and helps the agreement stand up in court if ever challenged. Sometimes, people agree to terms in the moment or under pressure. ILA gives you space to reflect on the terms of the agreement outside of any immediate pressure from the opposing party. At Step By Step Law, we give you time and the support to properly review the agreement, so you can be confident it truly reflects your wants, needs, and long-term interests.
To know more about our ILA process click here – Step By Step Law’s ILA Process
This blog post is for informational purposes only and does not constitute legal advice. For help with family law agreements, please book a consultation or inquire about ILA with Step By Step Law Corporation by emailing admin@stepbysteplaw.com or call our number at (250) 222 – 8000.