Under the no-fault divorce procedure that applies in England and Wales, couples can make their divorce applications jointly. As we know, no-fault divorce is all about removing blame and acrimony from the divorce process as far as possible. Allowing couples to apply to end their marriage together is intended to encourage a constructive approach. Some couples opt to go a step further and instruct the same solicitor to act for both of them in all the other aspects of their divorce such as financial matters and arrangements for children.
Dealing with divorce in this way might, on the face of it, seem suitable in certain cases. However, there are pitfalls when both spouses rely on the same lawyer for advice on their divorce. We discuss these below.
Should My Spouse And I Use The Same Solicitor For Our Divorce?
Family solicitors like Brookman are tightly regulated by the Solicitors Regulation Authority (the SRA). SRA rules do not generally allow solicitors to act for both sides in litigation. But as far as divorce is concerned acting for both parties is allowed where there is no significant risk of a conflict arising.
If solicitors are satisfied that it is in each client’s best interests for them to act and there is no possibility of a conflict then they may do so. So, technically speaking there is now no reason why you and your spouse cannot both instruct the same solicitor to act for you in your divorce. However the SRA guidance reminds solicitors that when they are acting for just one client in a divorce, they would normally be negotiating that individual client’s position and putting forward solutions that favour the individual’s interests over the other spouse. With this in mind, the SRA asks solicitors to consider, if acting for both spouses, whether they may be limiting the effectiveness of their service.
Safeguarding Your Financial Interests On Divorce
In our view it’s worth making divorcing couples aware of the SRA guidance we’ve just mentioned because it does raise the issue of the potential limitations of using the same solicitor for your divorce. Using a single lawyer may be more cost-effective and efficient in the short term. But can you be sure your legal position will be fully protected when it comes to division of complex financial assets like pensions?
Since the advent of no-fault divorce in 2022 obtaining a divorce has certainly become more straightforward for divorcing couples. That said, in our experience resolving finances and child arrangements remains a complex and difficult process for many couples.
Pursuing ‘Hidden’ Assets
Unfortunately it remains the case that spouses will regularly fail to make full disclosure of their assets on Form E as required. In our view one of the pivotal roles we play as divorce lawyers, particularly in those cases where we act for high net worth individuals, is to be alert to the possibility that there may be hidden assets overseas or elsewhere. We have a duty to doggedly pursue these assets on behalf of clients. It’s difficult to see how such investigations can be carried out effectively if we were in the position of acting for both spouses.
The 2023 case of Lewis v Cunningtons shows the repercussions when financial assets are not properly assessed and considered during divorce. There a law firm was ordered to pay a former client £400,000 because it failed to advise her an entitlement to her husband’s pension. In our view the possibility of inadequate advice and unsatisfactory settlements will only be heightened when one solicitor acts for both sides in divorce.
Removing blame from divorce should never lead one spouse to accept an unfair financial settlement. Getting a robust settlement can often only be guaranteed when each spouse gets independent advice from separate solicitors. It may be that alternative dispute resolution methods like early neutral evaluation can play a part in reaching a settlement in a less contentious way – with separate solicitors representing each spouse.