Law Articles

Why can’t both parties instruct the same solicitor in an amicable divorce or dissolution? 12/03/2021

A frequently asked question from amicably separating couples is whether they can instruct one solicitor to act for them jointly. Often both parties have discussed and agreed to the division of financial assets, arrangements for children and the timescale for the divorce or dissolution and, the reasoning is, the instruction of one single solicitor would simplify matters and reduce the costs associated with the legal ending of the relationship.

This, however, is not possible as it creates a conflict of interest. A solicitor has a duty of care to any client for whom they are acting, meaning that they must always act in the best interests of their client. This includes both giving legal advice to their client and representing them in dealings with their opponents, third parties and the courts. Even when parties in a divorce or dissolution are on good terms with one another, each has their own best interests as an individual and a solicitor promoting the best interests of one party cannot guarantee that those will coincide with the best interests of the other. It might also be the case that relations start off amicably but deteriorate because of legal disagreements.

The Divorce, Dissolution and Separation Act 2020, due to come into force in England and Wales in Autumn 2021, will enable separating couples to submit divorce petitions jointly but will not remove the prohibition of one solicitor acting for both parties. A court will still need to be assured that each party has received independent legal advice or has actively chosen not to seek such advice before ratifying agreed-upon arrangements in a Consent Order.

The issue of conflict extends to potential clients and would mean that, even if one party consulted with a solicitor but decided not to instruct them, that solicitor would be unable to represent their ex-partner later. For this reason, solicitors carry out a conflict check prior to any first meeting with a client or potential client.

One solicitor being unable to represent both parties in a divorce or dissolution does not mean that amicable informal arrangements cannot be directly translated into legally binding agreements. Each party to a divorce has the option of choosing to act for themselves as a litigant in person, or to instruct a solicitor who is committed to non-confrontational and harmonious negotiations wherever this is possible.

Collaborative approaches, including mediation, are likely to minimise the cost and timeframe of finalising arrangements and give separating couples the opportunity to explore several potential outcomes with minimal stress and anxiety. These approaches enable settlement discussions between parties either with or without representation, which can then be checked with respective solicitors before finalisation.

Instructing a solicitor to act for you and you alone in your divorce, dissolution or separation means that you can be assured that the legal advice you receive represents what is best and fair for you, and that you are being made aware of any consequences – unintended or otherwise – of a mutual agreement that you had not previously considered.

For further information and advice on this issue, and other family law issues, please contact us for a free initial consultation on 01992 306 616 or 0207 956 2740 or email us.