Henry’s article was published in Tatler Expert’s Corner, 14 April 2023, and can be found here.
Choosing a joint lawyer
With growing awareness of the emotional and financial toll that an acrimonious divorce can take on the whole family, many separating couples now want to achieve an amicable separation. At the same time, they recognise the importance of high-quality legal advice in ensuring that a fair and durable settlement is reached, but are wary that lawyers may increase tensions.
A new service called ‘Resolve’ aims to address this. It is one of a small but growing number of ‘one couple, one lawyer’ services in which a single lawyer advises a separating couple jointly, rather than each going to their own lawyer.
Until recently, it was considered that solicitors could not advise both parties to a divorce as it was assumed that the parties’ interests were in conflict with each other. However, it is now accepted that divorcing parties’ interests can be aligned where they both want to reach a fair solution to the issues arising from their separation which works for the whole family. It is in those cases that Resolve can be used.
Impetus for moving away from the ‘blame game’ has been provided by the introduction of no-fault divorce in April 2022. Since that change, there is no need for one party to accuse the other of adultery or ‘unreasonable behaviour’ to obtain a divorce, one party simply needs to state that the marriage has broken down irretrievably. It is also now possible to make a joint application for divorce, perhaps to reflect a decision to co-operate in building a constructive post-separation relationship.
Using a process like Resolve minimises the risk of the legal process exacerbating tensions. Its use of facilitated interest-based discussions focusing on common goals, rather than the traditional positional bargaining, can help separating couples develop tools for productive post-separation communication. This may be particularly useful where there are children.
Resolve will also generally be quicker and more cost-efficient than court proceedings, with the added benefit that the process is completely private. It can be used to address the full range of issues arising on divorce, including immediate questions around the family’s living and financial arrangements on an interim basis whilst Resolve proceeds, as well as a long- term comprehensive financial settlement and, if there are children, a Parenting Plan setting out arrangements for their care.
Resolve generally starts with a joint meeting to discuss how the process works, check the couple are comfortable working together and explore their aims and priorities. I then hold individual meetings to make sure there are no reasons why Resolve is unsuitable – this would include things like a history of abuse in the relationship, a significant power imbalance, or emotional unreadiness. Resolve isn’t right for everyone, and some couples may be better served by a process in which they each have their own lawyer, such as mediation or arbitration.
If the couple are happy to go ahead and I am confident that the process is suitable, the next step is to gather and share all relevant information. This includes full financial disclosure – having one joint lawyer does not mean a less rigorous process than where there are two lawyers or where the parties are in court, and just as much information will need to be provided as if there were court proceedings. Depending on the complexity of the couple’s assets, this stage may include obtaining business, property or asset valuations, expert pensions advice, a tax report or other specialist support. We are experienced in matters involving substantial asset bases, and Resolve is entirely suitable for HNW and UHNW families.
With all the information in place, I review it and provide joint advice to the couple on the relevant legal principles and how they apply in their case, and explain the parameters within which a settlement between them should fall. I support them in discussing possible outcomes, keeping in mind the aims and aspirations discussed at the outset, and reality-testing various options. Once consensus is reached on the best outcome, I will prepare a draft settlement document, which can then be submitted to the court for approval, so that it becomes final and binding. There will always be a fourteen-day cooling off period before that happens, to make sure both parties are entirely comfortable with the decision reached. If, ultimately, agreement can’t be reached, then the Resolve process will come to end, and the couple will need to instruct other lawyers for a different process.
Where a couple are also seeking to work out what arrangements to put in place for their children, I will talk them through the legal principles involved and explore how each sees the best interests of their children, and discuss what arrangements would best serve those interests. Talking through the different options and how they would work in practice from the children’s perspective can be a very useful exercise. In some cases this could take place alongside work with other experts, such as a family therapist.
Ultimately, Resolve allows separating couples to take ownership of the issues and develop solutions which work for their family, rather than having an outcome imposed upon them. The legal advice they receive will be provided with the best interests of the family as a whole in mind, rather than focused on the interests of just one party. For those separating couples ready and able to work constructively together, Resolve offers an opportunity to achieve a respectful, dignified and constructive divorce.
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