Divorce is easy (unless it isn't)

From an early age, all divorce lawyers have drummed into them the fact that you cannot act for both a husband and a wife in a divorce. We will know that under our code of conduct that is a non-negotiable point. It does not stop us often being asked though, “Why can’t you act for us both when we’re all agreed on what we want to do?”. Recently the court has been asking the same question so it is worth looking into this in a little more detail. 

1. What has the court recently done?

Last year the court referred a divorce case to itself for further consideration. A firm of non-solicitors had helped a couple who were going through a divorce. They had been married for just over 2 years when they separated. They had no children, owned no assets and each of them had a job. Their ages were not mentioned in the court hearing but I think it is safe to assume they were probably both relatively young. All they wanted was to be guided through the divorce process and have a formal document drawn up to evidence the fact that they would not be able to make any financial claims against the other in future. A clean break.

2. What was the judgment of the court?

The court ruled there was nothing to stop the firm in question from helping the couple with their paperwork. The firm was not allowed to submit documentation to the court on its headed notepaper because it was not a law firm but it could still draw up the documents where people agreed. 

3. So is this a ground-breaking decision?

Actually – not at all. We regularly get approached by either a husband or a wife, told that there is a total agreement in place, and asked if we can help draw up the necessary paperwork. The answer is yes we can do that but we still always take care to make sure that we only have one client. As a law firm we can submit the paperwork to the court. Therefore there is nothing particularly ground-breaking about the court’s decision and although some of the media outlets have picked up on it as being what they like to describe as a ‘game changer’ for the legal process, it isn’t. 

4. So why can’t solicitors act for both spouses?

Simply put, there is far too much possibility of a conflict. The case that was reported here was as straightforward and simple as it is possible for a divorce to be.  No money to argue over, no children to make arrangements for, both parties capable of supporting themselves financially, a very short marriage and spouses in total agreement. Such cases are quite rare. The firm in question has developed its business model to attract couples in this situation and to help them through an online offering. All the court has done is to confirm there is nothing objectionable to that. 

5. So what’s the difference in going to a solicitor?

In our experience, the vast majority of divorces are not nearly as straightforward as the above case.  The breakdown of any relationship can be a really painful event and it is vital that everyone gets good independent legal advice to help them through what is potentially one of the most difficult times of their lives. A personal, rather than online, service or DIY divorce is what most people are looking for and this is where solicitors are best able to assist.

6. Does that mean that every case has to go to court?

There are many different ways of helping couples who are getting divorced to reach financial agreements or agreements relating to the arrangements for their children. One of the ways we do this is through a process known as ‘collaborative law’. This involves spouses and their lawyers meeting to talk through and resolve their own differences, guided by professionals such as lawyers, independent financial advisers, relationship counsellors – basically whoever is needed to help deal with the complex issues involved. It is a process whereby clients own their own solutions and only when they reach agreement does the court become involved to ratify what they have done. 

Birkett Long has the largest collaboratively trained team of lawyers in Essex.

If you would like to discuss this or any other way of helping you with your relationship issues then why not give me a call on 01206 217320 or email [email protected] for a free 15 minute discussion about how we can help.