Divorce – how sharing a lawyer is helping farming families
© Adobe Stock Using one lawyer for both parties in a divorce has been made easier by recent changes to family law, with the implementation of the Divorce, Dissolution and Separation Act 2020. This came into effect in 2022, with its provisions applying also to the dissolution of civil partnerships.
The act allows couples to make joint applications to end a marriage, often referred to as “no fault divorce”.
Prior to this, one of five reasons – adultery, behaviour, desertion, two years’ separation, or five years’ separation – had to be given for a divorce application.
See also: How prenuptial agreements can help shape farming family futures
Kate Barber, a partner and member of Thrings’ family law team, has helped several couples through the one lawyer process in the past few months.
Two of these involved farming couples, one in a marriage of more than 20 years, the other 12 years.
Although the change came in just over two years ago, a lot of people don’t know about it yet, says Kate, who acknowledges that one couple, one lawyer is definitely not a suitable approach in all cases.
However, where it can work, it is a collaborative, cost-effective and efficient route to separation and divorce.
Less conflict, less stress
“By working together and focusing on finding mutually beneficial solutions on everything, from financial to family matters, it helps reduce conflict and stress associated with traditional, sometimes adversarial, divorce proceedings.”
A prerequisite is that couples have got to be able to communicate and sit in the same room together.
There has to be an element of goodwill and a desire to come out with the right outcome for the family, says Kate.
© Adobe Stock
“I think it’s important for farming couples to concentrate on the business and not the emotional side of things.
“With the traditional route you are giving up control. Farmers don’t fit the traditional way we would divorce an average couple with perhaps a couple of houses and a business.
“I’ve done a lot of farming cases through the courts and they can spiral and go in all sorts of directions and get very bogged down in the minutiae of all sorts of stuff. It’s about teasing out all of these very intertwined strands.
“This gives them control of the process. If you sit with a farming couple, they understand better than anybody the mechanics of their farm and we can get to the crux of the problem a lot quicker.”
How does it work?
The first step is for both parties to meet separately with the one lawyer for about an hour each. Understanding their circumstances and aspirations helps the lawyer decide whether one couple, one lawyer is right for them.
If the decision is made to go ahead with this approach, priorities will be decided, whether this is arrangements for children or the financial aspect of a divorce or separation.
The financial disclosure and information gathering process using one lawyer is the same as required by the court route, says Kate.
The number of meetings needed varies depending on the couple. Once agreement is reached, a settlement document is prepared for approval by a judge, which is conducted privately and without the need to attend court.
The whole process is likely to take several months less than the court route, which generally has a 10- to 12-month timescale, says Kate.
“All the one lawyer cases I have done so far have been less than six months.”
Whether those involved have clear views about the outcome, or don’t know what they want, ‘one couple, one lawyer’ can be a suitable route, she says.
“The key to a successful outcome is to have a willingness to be cooperative, transparent and ready to compromise.
“There could be more than one way to deal with the issue but, by giving the pros and cons for both sides, as well as providing expert advice on what a court might do in a particular situation, it allows the parties to work through the options to establish the best ones for their family and in the case of a farming couple, the business.”
How can it be fair?
Specific advice is given openly at meetings, with both sides being given the information they need to be able to make the right decisions.
“Usually the initial meeting is the only one where the parties are seen separately but if an individual wants to talk alone with the lawyer, that can happen, as long as the other side is OK with that,” says Kate.
“I would then follow up with a note to let the other party know what was discussed.”
The one lawyer approach does not make the process immune to disagreements. If these arise, the lawyer would reality check the aspirations of both sides and establish whether considerations can be made to reach a positive outcome, says Kate.
“If it cannot be resolved, either party can mediate that issue or seek a legal opinion if needed and bring that opinion back to a meeting to discuss together.”
Once a settlement has been agreed, it must be put before a judge for its fairness to be considered. If it is unfair to either party, it will not be approved.
The lawyer offering the ‘one couple, one lawyer’ service must follow the applicable law.
For financial matters, this means ensuring that section 25 of Matrimonial Causes Act has been fully considered.
Section 25 sets out the criteria that the courts must consider in deciding the appropriate financial and property settlement.
Cost-effective
Using one lawyer for divorce or separation is usually less expensive than traditional divorce litigation.
Where additional professional input is needed, for example, valuation expertise, which is likely in a farming case, the expert is jointly instructed and the cost shared.
Advantages of using one lawyer for divorce or separation
- Tailored solutions – couples have more control over the final settlement agreement as decisions are in their hands, not left to a judge
- No need to attend court
- No requirement for barristers
- Less conflict and stress
- Enhanced communication – open and respectful communication in a safe and supported environment, ensuring both parties have an equal opportunity to express their needs and concerns
- Cost-effective – usually less expensive than traditional divorce litigation
- Privacy and confidentiality – one couple one lawyer conversations are private and confidential. In the court route hearings may be in public
- Faster resolution – the one couple, one lawyer process often leads to a more efficient and quicker resolution, saving time and emotional energy
How is one lawyer different to mediation?
Mediation is valuable in resolving disputes and can form a run up to using the one lawyer route.
However, mediators can provide legal information but they cannot apply that law to the facts of a case or give an indication of how a judge might view the issue(s).
Nor can mediators draw up any financial settlement into an order for judge approval.
‘Traditional’ approach to divorce process
The most common forms of divorce procedure are first, the traditional solicitor-led approach, where an agreement is reached by correspondence between two lawyers or through the court process.
Second, an agreement can be reached through mediation. This is similar to ‘one couple, one lawyer’ but the mediator is unable to provide tailored legal advice to either side and cannot draw up any formal documentation, so this must be prepared by a lawyer.
The court route is generally a three-stage hearing process, says Kate, and if things cannot be settled during that process, the judge will impose a settlement.
If this is the approach chosen, then an application is made to the court, followed by financial disclosure by each party to the other and to the court.
Questions can be raised on the disclosure by the other party and those additional questions are approved by a judge at the first hearing.
First hearing – at this stage, any expert advice sought by a party can be raised, for example, on valuation.
The party seeking expert advice suggests three experts and ideally, the parties agree on an expert, who is then appointed. If there is no agreement, the judge decides which expert is appointed, from the list of three.
Following this, further questions may be raised and more information may be requested
Second hearing – this is a financial dispute resolution (FDR) appointment. Much work is involved in preparation for this, says Kate, who also points out that the financial disclosure has to be updated for each hearing, as valuations and circumstances change.
During the whole process, the parties are encouraged to make offers to try and reach a resolution.
At the FDR hearing the judge will give an indication of what they would do if they were hearing the case for a final time. This is designed to try and get the parties to negotiate outside the courtroom.
“For that hearing you are there pretty much all day, with barristers, and shuffling between rooms outside the courtroom trying to settle it, and see if you can narrow the issues based on what that judge has said. If you cannot settle at that appointment then it goes to a final hearing.”
Final hearing – this is at least a day, usually longer. Both parties have to give oral evidence and be cross examined.
Experts may give evidence. Financial disclosure must be updated. The costs of the final hearing are usually the same or more than the two earlier court appointments put together, with the cost of hearings roughly doubling at each stage, says Kate.
If preparation conferences are needed with barristers, this adds further cost.
Farming case study
Kate recently helped a farming couple through the one couple, one lawyer process
The former husband in the case has worked at the family’s cider apple farm since leaving school at 16 and took over the business in 1996.
The couple were together for 14 years and married for 12 years. Both parties had previously been divorced.
“I found the one couple, one lawyer process a lot easier because you are just dealing with one person, just one company,” he says.
“We had a fair bit of knowledge on what to expect and you usually find that once you get two solicitors involved, it’s not any easier, put it that way.
“In reality, if it had gone to court, I probably would have been worse off. It would have still come out slightly in my favour but it would have been much closer to 50-50.
“Overall, the process is good, and I would recommend it to anyone. It should be the first port of call or first option to consider if possible if you’re in an amicable situation when you are separating.
“If it’s a bigger business and there’s definitely more to play for than the size of ours then maybe you’d want to consider court but if you can come to a decision, it’s a lot less stress.
“I think I’d have been more stressed if we’d have each been fighting our own corner.”
His former wife says that, having made the decision to separate, they had already decided how the assets would be divided.
“We were partners in the farm,” she says. “While I didn’t do the physical work, I did some admin and worked on finding new private clients as contracts changed with the major cider makers.
“I think it’s ridiculous that divorce should be an adversarial process rather than a process of agreement. Nobody gains from that.”
The one couple, one lawyer process was a straightforward experience and worked well, she says.
“I could have been a bit paranoid. Even though it’s meant to be independent, I could have questioned whether it is really equal between us or is it slightly hedged towards my ex-husband.
“I think the traditional divorce process is an awful system to have in place when ending a relationship because it’s immediately a negative force. I think for all parties, it would help tremendously that separation was seen as a positive single way forward for both sides.
“I’m happy with the outcome. I had no interest in putting my ex-husband in any financial position where he would have to sell the farm or any land and assets.
“I have the horrible suspicion that if we’d gone down the route with each having our own lawyer, we would have been made to battle it out.
“It’s been incredibly painful, but just relating to the actual legal side of things, it has helped tremendously having the one lawyer approach.
“It’s not necessarily for everyone which is a pity, because I think if any of my friends were facing a divorce, I would say “Do this”.”
Specialist training
Solicitors who want to offer a ‘one couple, one lawyer’ approach must complete training provided by Resolution, an organisation of family justice professionals who work with families and individuals to resolve issues constructively.