Lawyers ‘can act for both parties in divorce’

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There is no conflict of interest in helping both parties in a divorce reach a financial agreement, a High Court Judge has declared.

In JK v VK & Another, Mr Justice Mostyn considered the case of a younger couple who sought a clean break divorce (one with no possibility of future obligations) after a marriage of just two and a half years. They approached an online divorce service specialising in joint financial agreements (legally termed ‘consent orders’).

However, one such joint order was queried by a regional Judge, who suggested that it might constitute a conflict of interest. Traditionally, although divorce is a joint endeavour, each party in a divorce has separate legal representation (if they have any at all), on the principle that lawyers should focus solely on the interests of one party in a case. As a result of the Judge’s questions, a sample case processed by the service was referred for review at the High Court. This happened to be JK v VK & Another.

At the Royal Courts of Justice, Mr Justice Mostyn quickly approved the couple’s jointly agreed consent order and freed them from the need to attend any further hearings. He then went on to consider the principles set out in the Legal Services Act 2007. This specifies that certain legal activities can only be undertaken by qualified solicitors, including the conduct of litigation and the preparation of documents dealing with property.

Mr Justice Mostyn concluded that the first category could not reasonably be applied to the completion of divorce documentation, or any accompanying advice, writing:

“It is clear … that the giving of legal advice per se by someone who is not a qualified lawyer is not prohibited under Paragraph 4 [of the Legal Services Act]. What if the advice extended to drafting a claim form such as a petition, or an application for degree nisi [the penultimate stage in a divorce] or the statement in support? It would be surprising if this were forbidden. Imagine if you were getting divorced and you have to fill in Form E [a declaration of your assets]. Imagine that your brother was divorced two years earlier. Plainly your brother is not committing an offence if he gives you the benefit of his view of the law. And surely, he would not be in breach of Paragraph 4 and thus committing an offence if he helped you to fill in your Form E which you, acting in person, intended to file with the court. It is common for litigants faced with filling in Form E to approach their accountant for assistance. Plainly, the accountant would not be in breach of Paragraph 4 if she filled in the numeric parts of a …draft of the Form.”

Meanwhile, continued Mr Justice Mostyn, applying the second category to consent orders would not properly reflect significant recent changes in the way divorce applications are processed.

He wrote:

“In 1980 a divorce petition had a numinous [almost religious] status. The Matrimonial Causes Rules 1977 were highly prescriptive as to its contents and presupposed that in most cases it would be “settled” by counsel. I myself recall drafting such petitions in the early 1980s. They were elaborate affairs which deployed arcane and impenetrable legal language. They always began with the time-honoured phrase: ‘The petition of Jane Doe sheweth that: …’.”

The Judge continued:

“Nowadays of course the populating of Form D8, the divorce petition, is a banal affair. It is largely a tick-the-box exercise. The government itself offers a service for completing this form online.”

In addition, he declared, even if his conclusions in relation to the applicability of the Legal Services Act were incorrect, input into the drafting of the order by representatives of the divorce service had been minimal and largely automated – and such involvement was likely to diminish still further with the development of suitable AI technology.

“During argument [when the key arguments were discussed in court] I tentatively expressed the view that the person preparing the documents in question was not a member of staff … but in fact the customer by virtue of his inputting of the data into [the] website. …However, it will not be long, surely, before artificial intelligence will do the checking. When that day arrives, and it will not be far away, it could not be said that anybody [at the divorce service] has prepared the documents.”

Consequently, no breach of the Legal Services Act had occurred.

Read the full ruling here.

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