Unfortunately, most lawyers will not represent both spouses for a marriage or cohabitation agreement. Although you and your partner may both currently agree about what the agreement will say, representing both spouses could put the lawyer in a conflict of interest. A conflict of interest means that a lawyer’s loyalty to one client could adversely affect his or her duties to another client. A lawyer could find themselves in trouble if one of the spouses later claims that the agreement favoured his or her spouse and the lawyer failed to fully explain the repercussions of the agreement. Some lawyers may represent both spouses if their interests are aligned and both spouses provide informed consent in writing that they waive any conflicts of interest that may arise in the future.

During amicable separations, spouses occasionally ask to jointly retain a lawyer to prepare a Separation Agreement. Lawyers cannot jointly represent separating spouses because their interests are opposed, whether or not they have settled all issues.

Both parties should obtain independent legal advice prior to signing any agreement, whether it’s a marriage agreement, cohabitation agreement, or separation agreement. After obtaining independent legal advice, it is important that both parties obtain a Certificate of Independent Legal Advice from their respective lawyers. (See “What is a Certificate of Independent Legal Advice?)