The "one lawyer, one couple" model is the newest offering to help couples amicably resolve differences arising from a divorce or separation. Couples often fear the polarisation and entrenchment that can occur when each instructs their own lawyer.
Having two lawyers also means that the couple have to bear two lots of legal bills. Beyond the cost benefit, there is a clear trend towards using less confrontational options to reach agreement without resorting to court.
Many couples who are happy to sit down together to discuss issues with a mediator or with their collaborative lawyers, struggle to understand why one lawyer cannot advise them both. Happily, it is now possible to do so in some cases.
When is "one lawyer, one couple" appropriate?
For a lawyer to advise a couple jointly, they need to be satisfied that the couple have a common interest and that both parties are in agreement to using one lawyer. To ensure that there is no conflict of interest, couples will need to be interviewed separately at the outset to ensure suitability.
This will give them the chance to raise concerns discreetly if they need to. If there are trust issues or an unwillingness to be transparent about financial or other information, the model will be inappropriate. If there are concerns that one party does not feel comfortable to discuss and negotiate based on joint advice, again the model will not be right for them.
A lawyer acting for a couple should be completely impartial and should not have acted for either, or their businesses and or close family previously.
If there has been domestic violence, coercive control, or if there are concerns about mental health or addiction issues, the lawyer would conclude the couple should have their own advisers and they would be signposted towards other more appropriate dispute resolution options, to ensure legal safeguarding.
Once a couple have been assessed as suitable for the model, they will each provide information to their shared lawyer. It will be made clear to them that all communications and information will be shared three ways and that there will be no secrets kept between either of them and their lawyer – the process must be entirely transparent throughout to maintain trust, objectivity and impartiality.
How will the process differ?
The lawyer will approach the case as they would if acting for an individual, save that they will be assisting both parties in the sharing and scrutinisation of their respective information. Queries about the information can be raised face to face rather than via correspondence, which can conventionally illicit a defensive response.
Impartial expert advice may need to be procured, for example from accountants in relation to tax issues or from actuaries in relation to pension sharing. The information from those reports will contribute to the advice given to the couple.
Once the lawyer is happy that they have all necessary information and have satisfied themselves as to any queries, advice will then be formulated and provided to the couple as to the range of settlement outcomes that are available to them.
The lawyer cannot impose an outcome as a judge might do, but will give joint advice on all aspects to enable the couple to make a decision by selecting their chosen outcomes on the issues to be decided. If the couple have a difference of opinion on an issue, the lawyer can give further neutral advice or they could seek a neutral evaluation from a private judge (usually a family barrister) to help break the impasse.
If at any point one or both parties want a second opinion from their own lawyer, they will be able to seek that. If they feel comfortable to continue the joint process afterwards, they can but if they instruct another lawyer to act for them, the joint instruction will be terminated.
The answer to high divorce costs?
This model gives control of the decision making to the couple. They will benefit from paying one lawyer, not two, although the jointly instructed lawyer will be undertaking the work that is shared between two lawyers in the traditional model.
Fees will therefore be higher for that lawyer than if they were acting for one party, but they should be less than the combined fees that two lawyers would charge under the traditional model. With the gloomy financial backdrop, being able to save fees as well as partake in a more autonomous process, is likely to be highly attractive to the right couple.
This article was first published in eprivateclient and can be accessed here.
Nicola Harries