An amicable divorce and financial settlement

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Assistance with preparation of a consent order

 

The extent to which a non-lawyer (called ‘amicable’ – all lower case in this case) can help a couple jointly to prepare and file a consent order application has been explained and approved by Mostyn J in JK v MK & Anor [2020] EWFC 2 (20 January 2020). He concludes his judgement

 

[46] The declarations [to be explained further] made in this case relate only to amicable [lower case: the company which assisted JK and MK]. Other online divorce facilitators (and there are many) can only rely on them if their business models are virtually indistinguishable from amicable’s.

 

How apt this comment is and the extent to which what amicable did can be replicated by mediation services – where they help couples jointly to reach agreement – will be considered in a separate post.

 

JK and MK were married in 2015. They had no children and separated in December 2017. They had no capital assets. Each was earning. They wanted a clean-break financial relief order. They approached “amicable” (the trading name of E-Negotiation Ltd, and which is always written in lower case) who helped them prepare divorce papers. amicable did not need to help the parties with finance negotiations, already agreed by them. amicable drafted the order using the relevant Standard Family Orders precedent and Form A.

 

‘amicable (is this the first time a judge has used lower case letters to start a paragraph?) helped the couple to prepare the statement of information for a consent order in relation to a financial order and to prepare a joint statement regarding legal responsibilities and disclosure of assets which was signed by both parties. This latter document is not required by the rules, but ‘I can see that it would be extremely helpful in enabling the court to scrutinise and to understand the net effect of the proposed consent order’ (see [3]), said Mostyn J. amicable charged for all this.

 

The court raised the question that ‘amicable was placed in a position of conflict of interest in acting for both parties’ (see [6]); and that ‘amicable [was] doing things that are forbidden to non-lawyers under the terms of the Legal Services Act 2007’. These questions were listed before Mostyn J and the Queen’s Proctor invited to intervene (Matrimonial Causes Act 1973 s 8). On Mostyn J’s direction amicable was joined to seek a declaration (though it is not clear from where he derives his power in the family court to make a declaration: he refers to it as from Senior Courts Act 1981 s 19(2)(a)).

 

Conflict of interest?

 

At [13] Mostyn J records Kate Daly, the founder of amicable (set up in 2015 following her own expensive and acrimonious divorce), as saying in her witness statement:

 

The desire to help people navigate their divorce positively, to improve access to justice (for the many not the few), and to avoid the emotional pain I and my family had experienced, drove me to investigate an alternative way to sorting out divorce and separation.

 

But did this aim to help both parties and to avoid being engaged in the conduct of litigation, even so, raise any question of a conflict of interest? The Queen’s Proctor thought not:

 

[17] The first and main concern that has been raised is that there is a conflict of interest for amicable to act for both parties. This concern is agreed by all to be unfounded. Specifically, the Queen’s Proctor is fully satisfied that no such conflict of interest arises. Joint instruction of solicitors happens frequently in divorce cases. Consider a consent order which provides for a jointly owned property to be sold. The parties will routinely jointly instruct a firm of conveyancing solicitors to deal with the sale….

[18] It is trite, where a solicitor acts for a client, that a fiduciary relationship arises. Where a solicitor acts for two clients, then, as a fiduciary, she must not act with the intention of furthering the interests of one client to the prejudice of those of the other. Thus, rule 6.2 of the current Code of Conduct for individual solicitors specifically permits solicitors to act for clients jointly where they have a substantially common interest in relation to the matter or the aspect of it, or where they are competing for the same objective.

 

amicable had a system of warnings (‘red flags’) to alert them when to refer on to solicitors (eg domestic abuse, alcoholism, suggestions of non-disclosure). In the light of his findings Mostyn J was willing to make a declaration (at [21]): ‘that amicable is not placed in a position of conflict of interest by acting for both parties under the terms of its business model’.

 

No violation of Legal Services Act 2007

 

But what of any violation of Legal Services Act 2007 s 12? Was what amicable were doing a ‘reserved legal activity’. Literally interpreted the Act might be said to apply to any legal document; but such ‘literalism’ must be avoided (see eg Lord Steyn at [19] in Sirius International Insurance Co v FAI General Insurance Ltd & Ors [2004] UKHL 54, [2004] 1 WLR 3251). Mostyn J held that the documents did not ‘violate’ the 2007 Act and declared accordingly. He suggested that the Family Procedure Rules Committee might want to consider an amendment to Form D8 accordingly.

 

The question remains: does this apply to mediators and lawyers who act for both parties in seeking for them a consent order or other agreed disposal of an issue in family proceedings? This must be considered in a separate post.

 

David Burrows

21 January 2020

One thought on “An amicable divorce and financial settlement

  1. Pingback: Potential for conflict and marriage breakdown | dbfamilylaw

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