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Disrupting the divorce courts

Maybe you are fine. Absolutely fine. Or maybe this recent break has exposed all the cracks in your marriage and you need to find a way out before everyone disappears down them. Well you wouldn’t be alone: this week is the busiest week in the divorce lawyer’s calendar as couples queue up to split up. However, the cracks in your marriage may very well be mutual ones – and you are not after a slash/burn at all costs War of the Roses type situation, but rather a very civil exit. We asked lawyers Harry Gates and Samantha Woodham of box-fresh initiative The Divorce Surgery to tell us about a new way: one couple, one lawyer. *mic drop*

The Divorce Surgery is the brainchild of two family barristers at 4 Paper Buildings and approved by the Bar Standards Board. Woodham and Gates realised that they and many of their profession had just simply given up trying to defend the traditional system of one lawyer each. “It is – no argument – destructive, inefficient, undignified and expensive, and truly necessary in only a tiny minority of cases,” says Gates. “Most separating couples don’t start out expecting to ask a judge to rule on who keeps the house/parrot/signed England football shirt from Euro ‘96 (true, I am afraid). Many end up there however, unable to extract themselves from the adversarial system we have created, bowled along by its unstoppable momentum.”

So Gates and Woodham are now feeling a bit better about themselves thanks to their new service, The Divorce Surgery, which is the first of its kind in the country to allow a separating couple to access legal advice together, from one expert: ‘One Couple, One Lawyer’, as they call it. They say it is much quicker and cheaper than engaging a set of lawyers each, although these are not even the main benefits. The Divorce Surgery’s goal is to encourage couples to take more responsibility at the outset for their future plans. This is because divorce is ultimately a shared problem, says Gates “irrespective of who has behaved disgracefully or who failed to put the bins out.”

Philippa Dolan, mediation guru and partner at Collier Bristow, suggests that although this concept is a positive step and will rightly attract clients, there may still be conflicts of interest issues that arise. Dolan says, “A conflict of interest arises where your duty as a lawyer to give best advice to your client conflicts with the advice you’d give to the other client. For example, should a loan from the husband’s parents to buy the family home be repaid? It depends whether you’re advising their son or daughter-in-law.” Dolan continues, “It’s a delicate balance. I imagine there will be occasions when the Divorce Surgery find they have to stop acting once the complexities of a case unfolds.”

However, Gates is very clear that “the conflict of interest point doesn’t arise, because we screen every couple individually at the outset to ensure they are suitable for The Divorce Surgery process. Thereafter, we are instructed by the couple together to provide an impartial expert view as to how a court would deal with their case, based on the evidence they have supplied. So, in the loan example, we would advise as to whether a court would be likely to consider a ‘family loan’ repayable or not, irrespective of whether it is the husband or the wife asking the question.”

And for those seeking a – relatively – conflict free divorce, “sitting in a room together to hear expert advice, both welcome and unwelcome, is incredibly powerful,” says Gates. As a result The Divorce Surgery claim you are then more likely to listen to each other when you start negotiating. This ultimately leads to less antagonism, a less stressful and quicker process all round, and above all, better outcomes for children. This is the default process in many European countries, and so they argue we should have it too… But isn’t this mediation, I hear you ask? “No,” says Gates. “Mediation is a process by which you are each helped to reach an agreement, but without legal advice. This is a crucial distinction. Given that you can’t conclude financial claims against each other without a court order, which needs to be approved by a judge, you really do need some legal advice first. The law is there to help you achieve a fair outcome – you should use it.”

The season of enforced jollity is at an end and the Christmas tree has been thrown out onto the pavement. If the exhausted specimen in front of you, shorn of its tinsel and lights, reminds you of the state of your marriage, well we have 23 brilliant divorce lawyers you can talk to. Or you could try a brave new way…

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