When 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.
When someone is determined to “go for the jugular”, then a solicitor is generally obliged to follow client instructions, albeit acting within permitted rules.
However, an increasingly common role of solicitors specialising in divorce cases now comes under the aegis of “family law”, 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.
People seeking initial advice on instituting a divorce should not be afraid to insist that their cases are referred to someone with relevant experience and expertise, in other words a lawyer with expertise in mediation and collaborative family law. The Law Society of Scotland runs an accreditation scheme and can provide details of solicitors who have relevant accreditation.
In addition to conventional legal skills, family lawyers will strive to offer emotional support and guidance, given that for some couples the divorce process is an almost surreal experience. Part of this will often involve “saving customers from themselves” by attempting to steer highly-strung individuals away from a destructive course of action which could be extremely costly, both in terms of emotional trauma and household finances.
However, as the old saying goes, “you can take a horse to water but you cannot make it drink”. Therefore, should an extremely aggrieved husband or wife be determined to embark on a course of action that their lawyer believes to be ill-advised, that individual must also recognise the likelihood of negative cost implications.
This sometimes controversial issue was the subject of a recent 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.
It recognised the part played by emotion during divorce proceedings, even in the most consensual of separations. At the other extreme, where one spouse feels completely betrayed by the other, many lawyers are credited with not only providing support and guidance but also to actively encourage them away from a self-destructive course of action.
However, the report does also mention “some occasions where the quality of the service falls short”, with over a quarter of the complaints related to costs. I suspect a link between this and lack of communication. While good quality legal advice will not necessarily be cheap, an experienced family lawyer does have a duty to give their clients a clear estimate of likely costs and to keep them informed of any unanticipated increases as a case proceeds.
It is simply not true that lawyers as a whole 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.
l Jennifer Gallagher is a family law solicitor with Blackadders