Thursday, 13 February 2020

Financial Orders On Divorce etc: Cheap Route to Getting Paperwork Done

Wanting to save legal costs on the preparation of a court order setting out what has been   agreed on property and money between you and your spouse or civil partner when the relationship has come to an end and there has been a divorce or dissolution.?  I looked at DIY orders and other ways of dealing with the situation at


There is a danger with a DIY job, as I have explained. And there is also a danger in one side not obtaining independent expert advice on the proposed order, as I have explained. But what about a cheap job from a non-lawyer or from a solicitor with either of them acting for both sides? In a simple case, this may now be possible as a result of a recent High Court decision in a called JK v MK and another [2020] EWFC 2. Whether this is possible will depend on whether, in each case, there is a conflict of interest between the parties.

In the High Court case, a divorcing couple paid £300 to  amicable (with a small a), a commercial firm which accepted instructions from them both to draft the order and associated documentation where the couple were in complete agreement with what they wanted the court to do and their financial positions were straightforward. amicable concluded that there was no conflict of interest. And so did the court which meant it was prepared to make the order as the couple asked and on the strength of amicable's paperwork. There are other non-lawyer commercial firms in the market who perform a similar service to amicable and applying the same sort of model. 

Of course, you may prefer to go to a solicitor to deal with joint instructions from you both. In a straightforward situation and with the comfort of this recent High Court decision, some solicitors may now be prepared to do the necessary on joint instructions. Unlike non-lawyer commercial organisations, they are bound by strict rules imposed by their regulators. The solicitors’ code of conduct specifically permits them to act for clients jointly where the clients have a substantially common interest in relation to the matter or the aspect of it, or where they are competing for the same objective.

I fancy that in the majority of cases there will be a conflict of interest where no solicitor or no non-lawyer commercial organisation should be acting for both sides. But, in the minority of cases, this will be okay and money can be saved.

For much, much more on finances after relationship breakdown, divorce and civil partnership dissolution, grab a copy of my book Breaking Law. Or buy one!

The activities of amicable who act for divorcing etc couple in obtaining a decree and financial remedies consent order haamicable ve just had the thumbs up from Mostyn J in JK v MK and another [2020] EWFC 2. The judgme will earn a thumbs down from practitioners who perceive a substantial loss of matrimonial work to amicus and other businesses which have the same or similar model.  
On the parties’ joint instructions and for £300, amicable helped in the preparation of the petition and the application for decree nisi and supporting statement and these were filed by one of them. In relation to financial remedies, the parties had already agreed a ‘simple’ clean break without any amicable involvement. For another £300, amicable drafted the consent order and helped in the preparation of the associated documentation which were filed under cover of a letter on their headed notepaper but signed by one of the parties.
Was there not a conflict of interest? Nobody thought so: not even the Queen’s Proctor who intervened, apparently not even the SRA which had investigated amicable and then gone on to praise them – and not even the judge who stated that joint instruction of solicitors happens in divorce cases. But how convincing are the examples he relied on in support of this proposition? Instruction of conveyancing solicitors to deal with a property sale or instruction of agricultural and tax specialists where they may be serious tax implications on the sale of a landed estate. The judge made a declaration that that amicus had not been placed in a position of conflict of interest and made the consent order which had been hanging on his decision. It was also unobjectionable for the petition to have contained amicable’s address as the petitioner’s alternative business address.
The judge inclined to the view that amicus was in a fiduciary relationship with the couple but did not need to decide the point. What he did decide was the ‘more difficult’ question of whether amicable had violated the Legal Services Act 2007 in carrying on a reserved legal activity (see NLJ 19 and 26 April 2019 p17).
Notwithstanding the conflict decision, district judges will continue to take a special interest in consent orders in joint instruction cases and cases where both or one of the parties has not received independent legal advice to ensure that they know what they are doing and that the proposed provisions fall within the ambit of fairness.
Whether solicitors will now feel comfortable with drafting consent orders and associated documentation on joint instructions remains to be seen.  I fancy most will not touch with a bargepole.