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“I hear you but I don’t want to follow your recommendations”

November 4, 2013

Relationship Property Advice and Decision Making

A couple of weeks ago I wrote about some of the hoops to be jumped through in order to legally formalise an agreement about relationship property. One of the legal requirements for a relationship property agreement was that each party receives independent legal advice about the effects and implications of the agreement. In order to be valid, your agreement must be certified by your lawyer to show you have received independent legal advice about it.

So, what happens if you get independent advice and don’t wish to follow that advice? Does this mean your lawyer will refuse to sign the certificate on your agreement?

On several occasions, I have found myself in the situation of advising my client not to proceed with an agreement but where they adamantly wish to. On some occasions where I have felt the client had issues that impacted on their understanding of my advice or were unduly being pressured to sign, I have refused to certify the agreement until other steps were taken. However, on many occasions, I have signed the certificate even though entering the agreement was contrary to my advice to my client.

Consider one of my recent clients. We’ll call him David. My assessment of David’s agreement was that he was agreeing to his former partner receiving significantly more than would be required under a strict division in accordance with the Property (Relationships) Act 1976. I took David through what the law said about how their property should be divided. I advised him against the settlement. I worked up the numbers for him so he could see exactly how much less he was actually receiving and how big that figure was. I sent him away with my calculations to “sleep on it”.

David called me a couple of days later and said he had thought about my advice, that he understood he was being more generous than the law said he had to be but that he still wanted to go ahead with the agreement. He explained some of the reasons why he was taking this approach. We met up and he signed the agreement and I signed the certificate.

Why did I sign the certificate even though David was going against my advice? I did so because the certificate only confirms that I have provided advice to David about the effects and implications of the agreement, not that he has followed that advice. In David’s situation, I was comfortable that:

  • I had all the valuation information from him and his former partner that I needed in order to complete my advice to him accurately and properly;
  • He had understood my advice;
  • He had taken time to make a considered decision, not a rushed one; and
  • He was acting freely and not under pressure or duress;

Most importantly, I recognised that the law is only one factor that went into David’s decision about the settlement. Sometimes the law bears little resemblance to the interests or needs of the parties and their family moving into the future. In David’s case, he was squarely focused on not only his interests but also those of his former partner and their young child and came to a settlement that he felt best met those.

When a client says “thanks for the advice, I get it but I want to do something different” I recognise that, like a jigsaw puzzle, there were many pieces to make up their decision and the law was just one piece.  My client may have had to weigh up a myriad of other factors:

  • the financial cost of continued negotiations or litigation
  • the personal and emotional cost of continued negotiations or litigation
  • the importance to the client of a positive future co-parenting relationship with the other person
  • the desire to move forward
  • wanting to do what is perceived to be “morally right”
  • a desire to ensure the children are well provided for
  • wanting to ensure that the agreement leaves both parties on an equal economic springboard for the future

the list goes on…

 

If you are concerned about a family law issue, give me or the team at Family Law Results a call to discuss how we may assist you: www.familylawresults.co.nz

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