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Divorce and the importance of individual legal advice

July 22, 2019  |   Posted by :   |   Blog

We’ve talked before about the danger of DIY divorces, acting as a litigant in person, and the myth of ‘quickie’ divorces – and while we understand the need to keep the costs of separation down, or the desire to get things over as quickly as possible, we cannot emphasise how important it is to have independent legal advice before making any kind of divorce agreement.

When it comes to DIY divorce, or attempting to negotiate a settlement as a litigant in person (LiP), there is a very real risk of missing important details, making expensive mistakes, and ending up back in court to sort things out months or years down the line.

There are also cases in which couples who have reached an amicable, independent agreement want to have it signed off by a single solicitor, only to be told they need to seek separate legal advice. This is because one solicitor cannot represent two people whose interests are in conflict.

No matter how collaborative you’d like your divorce to be, it is vital for each party to have their own independent legal advice. Solicitors are bound by regulations and rules that require them to act in their client’s best interest, and it’s impossible (and unethical) to do this for both members of a couple. A divorce settlement can be complex, and may include numerous conflicts of interest that need to be discussed privately with the individual and resolved through the correct legal processes.

There are many reasons why you might need independent legal advice during divorce and separation, such as:

  • When an agreement is unbalanced, or tipped in the favour or one or other party.
  • When there are assets that have not been disclosed.
  • When one party will be left financially vulnerable by the proposed arrangement.
  • When one party is being pressured by the other, or there is history of coercive control, or domestic, financial, or emotional abuse.
  • When property, business or pension issues are complicated, or there are assets that will be released at a later date.
  • When there are children involved, requiring sensitive and careful consideration to ensure children’s wellbeing and practical, sustainable ongoing co-parenting arrangements.
  • When an unmarried couple separate and need to divide assets, property, or deal with children’s issues. Unfortunately, cohabitants are not covered by the same laws as married couples and may find they are not entitled to the same protections. 

Of course, there are situations where a family law professional can act as an impartial third party, such as arbitration or mediation, to help couples reach a resolution – however, arbitrators and mediators are not able to act on behalf of their clients. In these cases, it is still generally advisable for each party to have their own independent legal advice before making an agreement. This way, no one is at risk of making a decision under duress; each party is able to make their own choices based on the advice they have been given; any legal correspondence between the two parties takes place via their respective solicitors; and the fairest agreement possible can be reached, whether that’s via a collaborative approach or taken to court.

In all cases, professional legal advice is the first priority so that you have all the information you need to make an informed decision about your situation and the options available. At Frances Lindsay & Co we offer a free 45-minute consultation for family law clients – let us take the weight off your shoulders and help you find the right way forward.

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