Can separating couples share a lawyer?

Is it a good idea for a couple to share a lawyer when separating? Award winning lawyer Suzanne Todd, Partner, and international family lawyer at Withers LLP, a renowned international law firm, believes it can be. In our discussion with Suzanne, she shares insight gained during over two decades of conflict resolution and in her position leading Withers' divorce and family team in London.

Can separating couples share a lawyer?

That said, there are limitations, for example, concerning any safeguarding issues or concerns about lack of financial transparency.  For some couples, having their own lawyer will certainly be the best choice, and for others it will be the only option.

What are good indicators that a ‘one couple one lawyer’ model would be suitable?

Good indicators include circumstances where the couple:

• Want to have control over the process and direct input into the final outcome
• Want support through the process
• Wish to better understand what a fair settlement looks like
• Are looking to work together to find an answer that suits their needs and, where relevant, the needs of their children.

When would circumstances mean that it is not a suitable model?

At the other end of the spectrum are couples with a power imbalance – not necessarily where one is more financially astute than the other, but rather where one has the upper hand and there is a risk of the other being put under pressure or feeling unable to ask questions or make requests. If there were significant issues in relation to safeguarding or capacity (for example where one person cannot make their own decisions, whether as a result of the relationship or mental health challenges) the 'one couple one lawyer' model is unlikely to be suitable. 

Specifically, when it comes to securing a financial settlement, an important part of any process is that both people fully understand the finances.  Working together with one lawyer is often helpful in this endeavour as misunderstandings can be quickly resolved. However, if one person had concerns that the other were withholding information that would not be suitable for a one couple one lawyer model.

Where a couple have a broad idea for an outcome and the lawyer's view is that it is outside of the possible orders that a court could make, then it may be unsuitable for a one couple one lawyer model and the lawyer would ask each to obtain their own separate advice in order to ensure that their interests are protected. 

However, the fact an initial prospective solution appears unworkable is by no means a bar to the process, and often once the couple have had the opportunity to secure a good understanding of both their financial position and the legal landscape, they may be able to alight upon an arrangement that is within the parameters of what a court would order. It's about working with both to find the right process and the right outcome.

Can you use different processes for the financial implications of separation and making arrangements in relation to the children?

Yes. Sometimes the circumstances mean that the court is the right place to find a financial settlement (for example if one person does not accept the financial information provided by the other) but they would prefer to have a supported discussion regarding arrangements for their children. In other cases, there may be safeguarding issues which require the protection of the court in relation to children, but both would prefer the speed, confidentiality, and bespoke nature of the one lawyer one couple model to navigate the financial implications of separation.

At the outset, presumably those couples who only want one lawyer are hoping to reach an agreement but what happens if they are unable to agree?

There are various options. One is to take independent advice to provide helpful steers which enable them to continue discussions together with one lawyer; another is to seek neutral evaluation; or they could opt to enter into arbitration where a binding decision is made. 

The objective of all the options is to allow couples to find the right service for them. That might change during the course of their journey, but because the various services are bespoke and flexible a change in direction can be accommodated – it just might mean seeking independent advice and then coming back to the original service.

The number of options can be overwhelming – and particularly so at a time in life when there is already uncertainty and upheaval. How to get divorced is an important decision and in many circumstances.

Why are there so many different options available for divorcing couples and how do they choose the right one?

When is making an application to court the right choice?

When discussing the alternatives to court, we talk a lot about why court isn’t a good choice: it's positional and so can drive people further apart; it's expensive; it's rigid and there is little scope for flexibility; it takes time; there's uncertainty as to outcome; and increasingly there are no guarantees of confidentiality. However, it is important to remember that sometimes court is the right place. This is especially so where there are concerns regarding safeguarding – the court can offer protection and can undertake robust assessments as to questions of risk. For the finances, it takes an investigative approach and can draw adverse inference where information is not provided, also when there are risks that assets may be dissipated the court can take protective measures. Where there is an imbalance of power in a relationship then asking the court to determine an outcome can address that imbalance and ensure one person is not under pressure to reach agreement.

Regardless of the process involved in reaching a resolution, what support do you think people need during the process?

From a financial perspective, it is useful to have experts to provide impartial information for example valuations of properties, businesses, artwork etc. Pensions can be a significant portion of the assets to divide and so having a good understanding of what pensions are worth now and in the future, and the implications of division, is essential. When determining future income needs and how they can be met, it can be helpful to use an accountant to help produce budgets for future expenditure. 

What advice would you give a couple debating whether to share a lawyer or not? 

Crucially I would say don’t dismiss it.  Sometimes people feel that they should be positional – that they need to have their own team to protect them – but that is often not the case: A separating couple aren't automatically on opposing teams; they just need to work out what they are trying to achieve and what is the most constructive, cost effective, informed way to move forward. In more and more cases that is something that they can do together with one lawyer. However, nobody should be put under pressure and if you feel having your own lawyer is right for you then that is perfectly fine and you do not need to compromise.

 Whether you are sharing a lawyer or not the most important point is finding the right lawyer for you. You will need to be able to work with this person, to trust their judgment, to feel comfortable sharing your personal information with them and I would say finding that person is the priority. Explore all the options, ask around for recommendations and use services like the Chambers, and Legal 500 to find out more about the firms and what they offer. Separation is a complicated and emotional time and so having the right support is key.

Conclusion

As can be gathered from our discussion, there are many factors to consider before even taking the first step in divorce or separation proceedings with your lawyer.  If you would like to discuss which approach would best suit your circumstances, or have any other questions, we encourage you to get in touch, we would be happy to help. 

First published by Cavendish Family Office on 7 March 2024. 

Co-authored by Suzanne Todd and Mark Estcourt.