We’re getting divorced. It’s all perfectly amicable and so my husband has suggested we instruct one family lawyer on the grounds that this will keep things simpler and less costly. Is this a good idea?
Steven Gasser, head of family law at law firm Laurus, says the concept of instructing one family lawyer would ostensibly seem a very good suggestion for couples like yourselves, who have gone through the separation process amicably, particularly for those who do not anticipate contentious legal negotiations or proceedings. The prospect of instructing two sets of lawyers may seem counterintuitive, costly and even contentious by comparison.
Solicitors are strictly regulated by the Solicitors Regulation Authority (SRA) and must be able fully to represent the best interests of their clients. It can be difficult to perform this duty when balancing the various inherently conflicting interests of each party. Each client will have their own individual views and objectives based on their circumstances, and solicitors must be able to take these instructions on board without any external influences.
While parties often start the divorce process on amicable terms, it is very common for this to change when they hit a roadblock in negotiations, or matters that they initially thought would be straightforward to resolve become more complicated.
Parties often approach the divorce process with varying degrees of legal or financial sophistication, particularly where one party is the breadwinner and the other a stay-at-home carer. One party might have a firm grasp of the value of assets such as property, but may have a much lesser understanding of more complex assets such as company shares and pensions.
It is important, in these instances, that solicitors are able to advise each party individually about what they can expect from the divorce process, and provide a realistic appraisal of what the parties are each entitled to — for both children and financial matters.
For couples who wish to conduct their divorce in a cost-effective and straightforward manner, one practical solution is for one party to identify a solicitor and then in turn seek a recommendation from that lawyer as to a suitable solicitor for the other party to instruct. A good working relationship between solicitors cannot be underestimated in ensuring that matters proceed to a conclusion amicably and in line with the initial and overarching objectives of the parties.
The idea of instructing one lawyer for two parties is a novel concept, and can be achieved if the solicitor instructs two barristers — one for each party. The solicitors’ regulations are different to that of barristers, and this is slowly becoming more widespread.
However, fundamentally it is imperative that the parties ensure they both have independent views to ratify the agreement that they have worked so hard to amicably reach.
Fiona Wilson, a partner in the family team at law firm Goodman Derrick, says an ability to deal with things amicably will undoubtedly help keep costs in check. You want to aim to have as much constructive dialogue as possible and to keep conversations going.
When you get divorced there are often three separate aspects to the process.
The first involves dissolving your marriage. If matters are amicable, neither of you probably needs to use a family lawyer at all as you can now deal with the process using a standardised set of government-produced forms and can even have everything dealt with online. This is likely to be a continuing trend with the introduction of no-fault divorce next year.
The second is dealing with any issues relating to children. If this applies, an experienced mediator should be able to help you and your husband work through these.
The third is dealing with issues relating to finances. Even when things are amicable, you should always still do a cross check to make sure that you have everything you need to make an informed decision on any proposed settlement and that all financial information has been fully disclosed in order to have realistic discussions.
Traditionally, it was not felt possible to have one family lawyer engaged to act for both parties and that is still the most common position. This is because there must be no conflict of interest between a lawyer and their client and this can be almost impossible to avoid if there are two clients with competing or opposite interests, as would often be the case when a couple divorces.
So, for example, one party wanting to be awarded more than an equal share of the family assets or where they run arguments about assets being premarital and to be kept out of the pot of assets for sharing.
Other issues which may make it impossible to avoid a conflict of interest are where negotiations still have to take place to resolve matters and even more so if one person is not prepared to negotiate, or where there are issues of domestic abuse or mental health issues.
Some legal clarification has recently been made in a 2020 case decided in the High Court, which effectively indicated that where there is no conflict of interest, it may indeed be possible for one lawyer to act for both parties. So, instructing one lawyer may indeed be possible providing you both have what was referred to as a “substantially common interest”.
The real benefit of using an experienced family lawyer, even where they cannot act for both parties, is that they can help steer the way through an unfamiliar process with guidance and advice to make sure that you can move forward securely for the future.
Barristers have different conflict rules than solicitors and one barrister can advise a couple, together, as to what a Family Judge would consider fair in their circumstances. This is the default position in some European jurisdictions, and such one couple one Lawyer services have in recent years been brought here, for example The Divorce Surgery which is regulated by the Bar Standards Board.
The opinions in this column are intended for general information purposes only and should not be used as a substitute for professional advice. The Financial Times Ltd and the authors are not responsible for any direct or indirect result arising from any reliance placed on replies, including any loss, and exclude liability to the full extent.
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