Do we have to have separate solicitors for divorce?

Do we have to have separate solicitors for divorce?

The short answer is no!

Until recently parties had to have to have their own separate solicitors. However, ways of working have evolved in response to demand from couples who are in agreement or simply want to work constructively together to reach an amicable solution.

More and more couples want to avoid court or expensive legal battles given it just reduces the asset pot available for their future lives apart.

Resolution, the umbrella organisation for family lawyers, has considered this issue in depth and put together a framework to enable parties to work together with one (suitably trained) solicitor. It is known as Resolution Together.

The Resolution Together model provides a structure which is flexible to the parties’ needs and is not a “process” as such. Instead it enables one solicitor to act for both parties in suitable cases to resolve issues arising from the breakdown of their relationship, whether in relation to finances or their children or both. It ‘facilitates’ an outcome.

Having one solicitor does not necessarily mean they will provide all the advice needed to resolve matters. Other professionals and services can be involved as required, such as mediators, valuers or pension actuaries.

Every case is unique and the solicitor will have a range of options open to them to try and progress matters to an agreed outcome both parties are comfortable with.

Needless to say it is not appropriate option for everyone.

At the very outset each party will have an individual meeting with the solicitor so they can screen for domestic violence (whether physical or subtle such as coercive control), check there is no imbalance of power and generally get a ‘feel’ for the situation to decide if it is the right approach. The solicitor will continue to be mindful of this throughout.

The parties have to demonstrate a commitment to work together, managing their emotions and showing goodwill and commitment towards each other too. The aim has to be a joint desire to reach an overall agreement and being honest about assets and the situation generally.

The solicitor cannot hold any confidences between the parties and there has to be trust between everyone. The parties have to be “emotionally ready”. If the Resolution Together process is deemed inappropriate then other options will be discussed, for example, mediation, working collaboratively, traditional separate solicitor representation, arbitration and (as an absolute last resort), court.

Assuming the Resolution Together approach is suitable, a specifically worded retainer letter is provided to each party along with a copy of an agreement setting out everyone will work together. It is signed by both parties and the solicitor and demonstrates everyone’s commitment to resolving matters jointly. Then the facilitated discussions can begin.

The solicitor might decide input from other professionals is required as the discussions proceed and it could be that one party is be referred for individual legal advice if a specific area of difficulty or concern arises.

The beauty of the Resolution Together approach is it is completely flexible and enables the parties to work together, using whatever professional input they require, to reach an agreement.

They also have control of the timescale and the number of meetings as well as the issues they want to discuss. Often important issues for parties are not deemed important in the eyes of the court so would not be considered in the traditional court approach. These can be discussed in detail in this forum if the parties wish.

There is also the added bonus all the discussions and the final agreement will be completely private other than being considered by a judge if a court order is sought. This would be to embody the agreement into a legally binding document.

Increasingly the press are being allowed into the family court so this is often a key consideration for parties as privacy cannot be guaranteed in that setting. All discussions are privileged and confidential so they cannot be shared with anyone else without agreement of both parties.

If an agreement is reached in discussions (and it usually is given the parties commitment at the outset), the paperwork can be drawn up by their solicitor, explained to them together and ultimately approved by both parties jointly.

The solicitor has a professional responsibility to keep individuals and especially any children safe from harm as discussions are facilitated. Advice is given at every stage to assist the parties to formulate a workable outcome but the solicitor’s role is not to negotiate on behalf of one party with another.

For parties who want to deal with matters in a cost-efficient way, do not want to have a “war” and certainly do not want to go to court this is a calm and dignified way to sort things out between them with professional help to ensure the agreement is fair to them both.

Separation is an emotional experience with a legal component and not the other way round and solicitors who undertake Resolution Together work recognise this. It is an approach which has been needed and requested for a long time. Finally there is a framework in place for it to happen.

Get in touch with Fiona Ryans, one of the few solicitors in the North East to be both a collaborative practitioner and to have undertaken Resolution Together training, to find out if this approach could work for you.