Family lawyer organisation, Resolution, has issued two joint notes to assist family lawyers in England and Wales ahead of the end of the Brexit transition/implementation period at 11 pm on 31 December...
What would the family lawyer do, presented with a blank piece of paper and tasked with the design of a new roadmap for resolving financial and children disputes? Before committing pen to paper, he or she might reflect that one of the first questions facing any separating individual is whether legal advice is required at all.
It is profoundly dispiriting that this is even up for debate, but in the post-LASPO world this is reality. As has been pointed out many times in these pages, what use are rights without adequate means of recognizing and enforcing them? Samantha Woodham and Harry Gates, of 4 Paper Buidlings, discuss the details.
Encouragingly, during debate on the future of legal aid at Westminster Hall on 1 November 2018, Gloria De Piero MP, Shadow Justice Minister, confirmed it is Labour Party policy to restore ‘all funding for early legal advice’. The government’s position, in response to the MoJ’s ongoing review of LASPO, remains to be seen.
Let’s assume then that receiving some early legal advice is a good start. To whom should it be given? The conventional position is that different lawyers advise each party to the burgeoning litigation. Anecdotally, it seems a rarity for both to be given precisely the same advice, even if legal professional privilege prevents easy comparison. Expectations can quickly diverge with calamitous consequences, while costs escalate. However much is said about the quasi-inquisitorial nature of family proceedings, the structure and feel remains staunchly adversarial. None of this is news, of course.
But what if early stage legal advice is given to a couple together? This is not something which, until now, has featured much on the dispute resolution menu. Private FDRs remain an invaluable tool, but for many come too late in the day, many months after the parties first begin eyeing each other nervously from over the battlements of their respective legal fortifications, and usually after a significant expenditure of emotional and financial capital. Likewise, mediation suffers from its difficulty in dealing with the central question so often asked by participants: ‘but what would a court do?’
In his valedictory interview in Family Affairs, and in the context of an illuminating discussion of the role of Artificial Intelligence in family litigation, Sir James Munby posed the following question:
“The process we currently offer the litigant is one which typically, far too frequently, ends up with a disproportionate percentage of those assets disappearing into the pockets of lawyers or otherwise into the costs of the system. That’s before you look at the emotional burdens of people being locked into post-relationship breakdown litigation for maybe a year or two years. We’ve never asked people the question – it would be very interesting, and we should do this in a way that is open and not loaded – would you rather have something like the existing system improved, but where it’ll take a year to get an answer, where a significant percentage of the assets will disappear in the costs of the process, where the outcome is unpredictable and where either or both sides may be dissatisfied with that outcome and where you may, horror of all horrors, have to mount an appeal, or would you prefer a cheap and cheerful process, which within a very short space of time would provide you with an answer which is likely, with a reasonable degree of probability, to be within the right ballpark?’
We are attempting to tackle this point head-on with our new initiative, The Divorce Surgery, an Alternative Business Structure authorised and regulated by the Bar Standards Board. Since the summer, The Divorce Surgery has provided (very) early stage legal advice to both parties together. The couple instructs one barrister jointly, to advise them together on a without prejudice basis as to how a court would view their case.
This is not in fact new. In Italy, the Netherlands and Belgium (among others) separating couples can instruct one lawyer to advise them on a fair outcome with regard to division of their finances. Only when they cannot agree are they then referred to separate lawyers. There has been discussion among academics and practitioners about developing this kind of model here, see for example Mavis Maclean and John Eekelaar’s ‘Lawyers and Mediators: The Brave New World of Services for Separating Families’, and last year Marilyn Stowe wrote here about the need for professional conflict rules to be changed so that solicitors or solicitor mediators could provide joint advice to couples. But the debate so far has not considered the position of barristers, who are not subject to the SRA conflict rules and who can accept a joint instruction to advise a couple provided, of course, that barrister does not represent either of them going forwards.
We have had significant scope and freedom to design it ourselves. Self-evidently this will not be suitable for every couple. The way the process works is that the advising barrister will meet each participant separately for an introductory session. This means we can screen for cases which won’t be suitable (e.g. non-disclosure cases, abuse dynamics, jurisdictional disputes and so on). In essence if the couple are unable to agree on the size of the asset pot, they won’t be suitable for joint advice. Similarly, any safeguarding issues in the private law children arena are a red flag. If couples fit the bill and want to proceed there is then an accelerated disclosure process before they meet the barrister together for joint advice.
In terms of the way disclosure is managed in a financial case, we ask clients to complete Forms E, but only Sections 1 and 2. These will be open documents. The more ‘subjective’ parts of the Form E, e.g. income needs schedules (for themselves and the other), capital needs, contributions and earning capacity arguments, we ask to be completed on separate sheets which remain privileged. Everything is exchanged and must be agreed. The advising barrister will not see supporting evidence unless absolutely necessary. If an expert report is needed, for instance from an actuary, this must be obtained and agreed prior to the advice session. Often couples will already have prepared Forms E as part of the mediation process or may come to us after the disclosure process has been carried out by their respective solicitors. The Divorce Surgery is not a forum for investigating whether full and frank disclosure has been made. If there are concerns about this, it is a sure sign that it is not the right process.
Once the disclosure is to hand (usually 2-3 weeks following the introductory meetings), the advice session takes place. The advising barrister will have prepared an asset schedule and a written advice, through which the couple is taken together. The advice is considerably more detailed than most FDR indications, usually 15-20 pages long, setting out a clear summary of the background, significant detail about the applicable law and case law, and specific indications as to the bracket of outcome which a court would consider fair. The couple can then discuss the advice with the barrister during the session and raise any additional points they think may be relevant. Following the advice session (which usually lasts around two hours) the couple will receive the final version of the written advice and schedule of assets, which they can consider in their own time, discuss with their respective solicitors or take to mediation. The Divorce Surgery’s involvement ends there: it is not itself a process for negotiating a settlement, or mediating, or drawing up Orders reflecting an agreement. In our view this is a real strength of the model. It is not an adjudication. The advice is privileged. If couples choose to, they can ignore it. If they want to reach agreement within the parameters of the advice given, The Divorce Surgery can signpost them to solicitors and mediators depending on their preference.
How has it been on the ground? The short answer is fascinating. As barristers who have always acted for one client, and in one client’s interest, it is a huge privilege to be able to hear both sides, unfiltered. The couples we have had so far are not the ‘conscious uncouplers’ of popular imagination. We have seen cases bearing all the hallmarks of contested litigation: businesses built up post separation, unreasonable expectations as to whether it is possible to retain the family home, compensation for loss of career, conflicting views as to earning capacity, and even as to the date of separation (which we deal with by offering advice on the two alternative hypotheticals). All of them have wanted to be ‘fair’ in principle. What happens when they hear the advice together is interesting. They listen, they engage, often hearing advice they don’t want to hear. Importantly, they see each other getting unwelcome advice. The process itself removes any power imbalance: the couple are both instructing the same impartial barrister who has no investment in an outcome favourable to either.
The feedback we’ve had so far is that these cases are then settling. One couple (who were £1.7m apart) reached agreement within a week. Our – admittedly limited – experience so far has been that the advice sessions have had the effect of aligning expectations at the outset, leading to less scope for conflict. The obvious benefits of a less protracted process include the preservation of a better relationship for the parties involved, better outcomes for their children, and a far lower legal spend. It can be said with some confidence that the current system for resolving family law disputes is not working: time will tell, but we very much hope The Divorce Surgery can be part of the solution.
Samantha Woodham and Harry Gates are both family law barristers at 4 Paper Buildings. They are each recognised as leading individuals in both the Legal 500 and Chambers and Partners. Their private practices encompass both financial remedy and private law children work. Alongside this they have set up The Divorce Surgery, a service which allows couples to obtain joint, impartial advice at any stage of the divorce process: www.thedivorcesurgery.co.uk.