In the first article of this series, we introduced the 3 key steps you must take before signing the contracting out agreement for it to be valid:

1. Independent lawyers
2. Disclosure
3. Advice

In this article we will look more closely at Step 1 – Independent lawyers.

Does that mean we just get two different lawyers?

Not only does this mean you each need separate lawyers for the contracting out agreement, but those lawyers should also be at separate firms.  And it goes even further, the lawyer advising you should not have previously acted for your partner either.  This ensures that the lawyer who is advising you does not owe any ongoing duties to your partner as a client that would conflict with the lawyer’s duties to you as a client.  In some circumstances the lawyer may still be able to act for you, if you and your partner give fully informed consent.

So how does it benefit you?

The RPA states that the agreement is void unless you receive advice from an independent lawyer.

Your legal interests in protecting certain assets against a relationship property claim will often differ from your partner’s legal interests on separation.  Having an independent lawyer protects you and ensures the advice you receive is about how the agreement will affect your rights and what the implications are for you, independently of your partner’s interests in contracting out.  It can help ensure the agreement is future proofed, reducing your legal costs for updating the agreement as your relationship develops, and significantly reduces the risks of having the agreement overturned by a Court for being seriously unjust.

Next time Step 2 – Disclosure (and a hot tip on how to reduce your legal costs!)

Kerry Bowler, solicitor