Joint legal advice for divorcing couples

In recent years, there has been an increase in demand from divorcing couples for joint legal advice, with more divorcing couples wanting to resolve their separation and its consequences by agreement with advice from a single lawyer.

There is likely to be many reasons behind this, including the burden of costs on each party of two lawyers, the introduction of no-fault divorce and a growing understanding among lawyers and divorcing couples that in some circumstances a divorcing couple’s best interests might be achieved by working together with one lawyer. There has also been a shift in public policy towards consensual resolution of matters arising as a result of divorce through non-court dispute resolution (NCDR) methods, such as mediation, working collaboratively or early neutral evaluation.

Moving towards a more amicable solution

Traditionally, couples facing divorce have been made to feel that they need to ‘lawyer up’. Opposing lawyers then ‘fight their client’s corner’. The foundations of the relationship, such as kindness and compassion, can be early casualties, caught in the crossfire of an aggressive legal process. 

However, public policy is promoting less conflictual means of resolving issues arising from family separation and as awareness is increased that there are other means of dealing with issues or an increase in those people who simply want to resolve things for themselves amicably given the impact on them and their children if they don’t, lawyers must remain relevant to what clients need.

Many parties who are separating these days may be acting without any specialist advice when initiating divorce proceedings digitally, and if they do consider obtaining advice from separate lawyers they view it as too costly and burdensome. Divorcing couples are also often worried that if they go to separate lawyers, unnecessary conflict will be caused between them.

Unregulated offerings

A turning point and wake-up call for the legal profession came following the High Court decision in JK v MK [2020] EWFC 2. In this case, the court approved the use of a scheme whereby separating couples would obtain neutral advice under a scheme operated by that organisation. Many such services exist in the unregulated sector. Being unregulated though of course means that there is no central authority overseeing the activities of the organisation providing the service. No one to check the competence of the services or advice being offered. No one to hold accountable. Lawyers are highly regulated to the highest professional and ethical standards and will have undertaken years of intensive study, training and supervision. Many then go on to add additional and valuable skills to their strong legal core, which could include mediation, collaborative law, arbitration and, in some cases, holding judicial office as judges.

The evolution of the legal profession

Lawyers are therefore best placed to be assisting divorcing couples; however, if we are not offering the public what they want they will turn to others that are, or indeed turn to no one at all and opt for the DIY approach.

If the public sees that the legal profession is providing a solution for parties who wish to settle matters amicably and without conflict and is providing skilled advice to assist those in need of it, the profession’s reputation will be enhanced.

As a result, some family law lawyers now offer the option for divorcing couples to instruct them jointly to act for both of them. This way of working enables a divorcing couple who want to manage their separation together to seek joint legal advice and make jointly agreed arrangements for finances and children based on their shared interests.

Whether or not a lawyer is able to advise a divorcing couple together will be dependent on the individual circumstances of each case. A lawyer has to comply with their regulatory requirements within any resolution service they are providing. In summary, in order to be able to act jointly the lawyer will need to ensure that the parties wish to resolve matters consensually and to receive advice jointly. The parties must consent to sharing all information and there does not appear to be any imbalance of power or other relevant factor which makes it inappropriate for the lawyer to advise both parties. The parties then enter into a retainer agreement which confirms their informed consent for the lawyer to advise both of them jointly, there is an initial and continuous assessment for potential or actual conflict of interest to ensure that such potential (or actual conflict) is addressed, and an appropriate decision taken as to whether it is appropriate to start or to continue working with a divorcing couple in this way.

This way of working is now referred to on the Gov.uk website as an option available to divorcing couples. It is referenced in the financial remedy pre-action protocol within the Family Procedure Rules Practice Directions as being a way of working that is good evidence of a constructive attempt to obtain advice and avoid unnecessary proceedings. It is also a way of working that is now endorsed by Resolution, the governing body for family law practitioners, with ‘Resolution Together’ training being available to assist lawyers who want to be able to provide this service. 

Conclusion

For many family law lawyers this way of working is part of bigger strategy to move away from an adversarial approach due to the devastating impact such as approach can have on separating couples, their children and society as a whole. It is also a potential shift towards breaking down service silos, with practitioners starting to focus more on how combining skills from the different NCDR options can provide more creative, constructive and long-lasting solutions for couples that are divorcing.

Lawyers providing joint advice should do so with caution though and only after ensuring they have the necessary process model in place to comply with the regulatory requirements, together with the skills, expertise, experience and retainer to be working in this way. Whilst this way of working quite rightly has its place among the options available to divorcing couples it is not suitable for everyone. Given the uniqueness of every family situation, as with any dispute resolution process, there is no one-size-fits-all approach and the best way forwards must be tailored accordingly. 

Gemma Hope is a Director, Solicitor, Collaborative Lawyer, Mediator at Family Law Partners

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