In response to the well-known levels of antagonism and hostility which arise on divorce and relationship breakdown generally, family lawyers have over the years developed various ways to mitigate the worst excesses of this, the associated legal costs and adversarial nature of our legal culture.
Mediation and collaborative law for example, have tried to resolve the substantive issues which couples face in a way that is more conciliatory and cost effective.
The new kid on the block is the single lawyer solution. This is not a dating app for lonely legal professionals but refers to a situation where one lawyer works with both parties. While this may seem radical, it is also a case of us playing catch up with other jurisdictions. It’s commonplace in some European countries for the same lawyer to act for both parties on divorce, Italy for example, and Sweden offer this option without any novelty value attached.
Since 2020, it has also been established that subject to certain “red flags” being observed, this does not create a conflict of interest for the solicitor. But in England, the traditional position that each party faces off by “getting lawyered up” remains the norm.
In certain circumstances, this may be appropriate due to the nature of the relationship between the parties and fundamental issues such as financial disclosure, or lack thereof. However, assuming that the parties are sufficiently amicable (and there is no evidence of any pressure, duress, let alone domestic abuse or coercive control), then why not use the same lawyer to advise both? This model has something in common with mediation in the sense that both parties have one professional involved to facilitate and help them solve problems and disagreements which may arise, but there are certain key differences.
The lawyer involved in the process is not partisan. They do not take sides. Instead, they offer advice based on the information provided, and explain how the case would, in their professional judgement, be decided if the case went to trial, scrutinise options and consider the practicality of different proposals.
Again, this builds on existing processes familiar to most family lawyers. The difference is that this is an approach taken from the outset with one lawyer, rather than at a stage when positions have already been adopted by parties and views expressed which in and of itself cause the parties to move further apart.
To reach a conclusion this process is likely to include the intervention of more than a solicitor, the single lawyer approach will require the involvement of financial advice or a barrister: it is important to test proposals against the financial reality, and financial advice is an intrinsic part of the financial remedy process. This may cover mortgage advice, tax planning or how to invest a lump sum to produce income post settlement. In other cases, there may be a single issue which justify a barrister’s view on proposed settlement options.
At FLC we are more than familiar with working with these professionals, and indeed it is our bread and butter so to speak. If you are interested in finding out more about this service, please contact a member of the team.
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If we have one lawyer, who pays, what are the rules here?
Usually each party pays for themselves, or the parties agree to meet the cost of a single lawyer equally between them, but the parties can make whatever arrangements work for them. The fees can usually be agreed in advance or fixed to avoid any shocks.
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If it all goes wrong and we can’t reach an agreement, can I continue with the same solicitor?
Unlikely; this would probably create a conflict which would prevent a solicitor or barrister who has advised as a single lawyer to act for one of the parties if the negotiations broke down. Bear in mind too that what is said in a meeting with a single lawyer is likely to be “without prejudice” and so cannot be referred to in any later court proceedings, or within most correspondence between the parties that may follow with newly appointed lawyers.
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Can I get separate advice or support if I feel this is needed?
In theory yes, in the same way that a solicitor can act in the background in mediation, or you can get a second opinion of any legal advice you receive, the same is possible here. But it would be slightly counterproductive to take this approach given the premise of using a single lawyer to help you reach a resolution together with your ex.
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If we need to use a barrister or financial expert as well, how do we choose the right person?
This can be discussed with the lawyer you instruct who can suggest a range of names tailored to the needs and issues raised.
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What happens if we reach an agreement, do we need to do anything else?
If you are dealing with finances, a court order is required to make the agreement binding and, in some cases, to enable it to be actioned or implemented (pension sharing for example). This can be drafted by the single lawyer and sent to the court by the parties. You will need to file for a divorce and reach the conditional order stage before the order can be approved.
Generally, with child arrangements, unless there is a positive reason for doing so, if arrangements are agreed, an order will not be necessary (the “no order” principle). That said, any arrangements should be set out in writing so both parents are clear on what should happen, including as far as you can, details of the agreed routine/arrangements for the children during term time and the school holidays, and any other relevant detail such as how handovers are to be facilitated, for example.