10th February 2013

Focus on Resolution, not Revenge, Keeps Down the Cost of Divorce

Whenever a spouse, particularly a wronged one, reaches the conclusion that their marriage has come to an end, invariably the instinct is to "get a good divorce lawyer".

The intention is to come out of a divorce as financially secure as possible - and, it must be said, to exact some revenge should the split involve betrayal on the part of husband or wife.

If a client is determined to 'go for the jugular' then a solicitor is generally obliged to follow his or her instructions, albeit acting within permitted rules. For the solicitors who specialise in divorce cases, which now comes under the aegis of 'family law', the solicitor's role can often involve saving the client from him or herself. This is on the basis that a permanent marital split should be about the most appropriate all-round solution (especially where children are involved) rather than one side getting one over on the other.

This view was this week reaffirmed by a report by the Legal Ombudsman in England and Wales entitled "The Price of Separation: Divorce Related Legal Complaints and their Causes". Although dealing with experiences south of the Border, the points made are valid and provide helpful food for thought for family lawyers and their clients in Scotland.

Unfortunately media reaction (in England) was fairly hostile and gave the erroneous impression that lawyers were not only expensive but that their intrusion in marriage disputes actually made matters worse when in fact the report was far more measured and considered in its terms.

It recognises the part played by emotion during divorce proceedings, even in the most consensual of separations where the couple are nonetheless saddened by the split. At the other extreme, where one spouse feels completely betrayed by the other and is hurt and angry as a result, the report recognises the efforts made by lawyers in such circumstances not only to support and guide their clients but also actively encourage them from a self-destructive course of action.

However the report does also mention "some occasions where the quality of the service falls short". Perhaps not surprisingly, over a quarter of the complaints the Ombudsman dealt with related to costs. I suspect that many of these instances will relate to lack of communication. While good quality legal advice will not necessarily be cheap an experienced family lawyer does have a duty to give a client a clear estimate of likely costs and to keep him or her informed of any unanticipated increases as a case proceeds.  

While many firms will offer 'family law services', potential clients should not be afraid to insist that his or her case is referred to someone with relevant experience and expertise.  For example, I would recommend that they ask whether a lawyer offers mediation and collaborative family law. The Law Society of Scotland runs an accreditation scheme and can provide details of solicitors who have been accredited in family law.

The Ombudsman Report also recognises that clients will rely heavily on family lawyers for emotional support and guidance, part of which will often involve "saving customers from themselves" by guiding them away from a destructive course of action.

While recognising that most family lawyers discharge this responsibility "conscientiously and with admirable sensitivity" the report is not a whitewash, adding:

"Good lawyers, the majority of those with whom we deal, manage these tensions with admirable deftness….some, through their own inability or inexperience allow cases to be prolonged unnecessarily".

However members of the public do have responsibilities of their own. If an individual - perhaps stung by totally unacceptable behaviour of the part of their spouse - is determined to embark on a course of action a lawyer believes to be ill advised, he or she must also recognise the likelihood of negative cost implications.

While every basket has a few bad apples it is simply not the case - as some headlines seemed to suggest in the wake of the Report - that lawyers are ready to 'pounce' and take advantage of the emotional distress which divorcing or separating clients invariably experience.

We are not cougars - nor are we fat cats either, attempting to string out cases by feeding on the emotional dimension that applies to every divorce.

That divorce work now comes under the umbrella of 'family law' reflects a departure from adversarial to collaborative treatment of individual cases. Lawyers are not marriage guidance counsellors and therefore cannot make a divorce situation 'better'. However their actions can mitigate some of the distress and pain and produce a long term solution which both warring parties, in the cold light of day, will agree is the most sensible solution for everyone involved.

Jennifer Gallagher is a solicitor accredited in family law with Blackadders.

Back to News & Legal updates