There has been a recent increase in the number of self represented individuals who attend my office with a signed separation agreement that was drafted by themselves (sometimes by their spouses or with the assistance of their spouses) and request that I notarize the document. These individuals are under the mistaken impression that if they have their separation agreement notarized that this creates a legally binding and enforceable contract. Unfortunately, I have to tell them that this is not the case.
When a lawyer (or notary) notarizes a document this means that the lawyer (or notary) is certifying that either: (1) the document is a true copy of the original document; or (2) the signature on the document is the true signature of the person purporting to have signed the document. They are not certifying the the document is a legal document, they are not certifying that the document is a legally binding document, and they are not providing legal advice with respect to the document.
People often get notarization confused with a certificate of independent legal advice. A certificate of independent legal advice is a document that attests that a person has received legal advice on a proposed contract, from a lawyer not associated with the other contracting party. The purpose of these certificates is to prevent a person from later claiming that he or she didn’t realize the consequences of, or even know what they were signing. The certificate of independent legal advice acts as a shield against a person who has signed the separation agreement but later wants to set it aside because they feel like they have received a bad deal.
If you are trying to have your separation agreement notarized you may be increasing your potential liability and/or exposure rather than decreasing it. Before you sign your separation agreement you should speak to a lawyer who specializes in family law.
Erika MacLeod is a family and divorce lawyer practicing in Guelph, Fergus, Elora, Kitchener-Waterloo, Orangeville, and the surrounding areas.