Financial Negotiations Within Divorce Proceedings and the Need for Independent Advice

We are sure that we were not the only family lawyers concerned by a recent decision of the Family Court which decided that a non-lawyer internet support company was not automatically placed in a position of potential conflict in assisting a divorcing couple to resolve their divorce and related financial matters by helping them to complete forms, negotiate financial matters and draft a consent order.

The Court decided that no conflict of interest arose in the company in question assisting both parties under its business model and that the company’s activities did not amount to a reserved legal activity.

Whilst this was no doubt correct in the particular circumstances of the case the need for each party to receive impartial and independent advice is of paramount importance.

It is understandable as to why this decision seemed an attractive outcome in that since the demise of legal aid the issue of legal costs has created problems for many divorcing couples and in the case in question the parties were agreed on a reasonably straightforward clean break settlement.

However there have been many occasions over the years where we have been approached by a divorcing client who wished to finalise a financial settlement which had been negotiated directly with their spouse and where, as a result of a lack of knowledge of the rules or intimidation by the other spouse, the terms proposed were unreasonable and unfavourable to our client.

Whilst the need to try to contain legal costs within reasonable and proportionate levels is something which our family team always regard as a priority, this cannot outweigh the need to ensure a fair and reasonable outcome –unless the sums involved are so small as to make any unpicking of a proposed deal wholly uneconomic.

It is also the case that it is often only through a meeting and detailed initial discussion with the client that the shortcomings with the proposed deal become apparent – something which can only be complicated by the absence of a face to face discussion with a qualified and experienced family lawyer.

At Tolhurst Fisher we prioritise down to earth and cost effective advice but whilst also ensuring any agreement negotiated and implemented reflects our clients’ needs and rights.

Author: Nigel Holdcroft