More and more people are having a stab at their own divorce petitions. The court forms make this relatively easy in an uncontested divorce and as long as nothing goes awry it is achievable. You don’t have to be an expert on the British Nationality Act to fill in an application for a passport and you don’t have to be an expert on the Matrimonial Causes Act to fill in an application for divorce. With the exception of unreasonable behaviour petitions which do require some careful drafting, it is a matter of choice whether you have someone do the forms for you or not.
I know I have gone on before about the dangers of using unregulated legal services….so just to recap:
Unregulated providers like divorce online, quickie divorce, managed divorce etc
- Do not have to have any legal training whatsoever
- Do not have to have insurance
- Do not have to have a complaints policy
- Do not have to provide customers with clear terms of service
- Are often not cheaper
- Are not allowed to give discreet legal advice
- Are not allowed to represent you in court or in any court proceedings
- Are not authorised by the Legal Services Act 2007.
The Legal Services Board is currently undertaking research into how useful or otherwise these services are and whether changes to the current law need to be made to protect the public.
But applying for your own divorce is not the same as drawing up an agreement in relation to the division of your assets. Why not? Because agreements are far more complicated on the whole and your circumstances are unique to you.
By the end of 2014 the President of the Family Division Sir James Munby would like there to be in place a comprehensive set of precedents to be used in most family law orders, ranging from occupation orders to financial remedy orders.
Use of these standard orders was originally going to be “mandatory” and introduced by April when the single Family Court is supposed to come into existence. However, it is now thought that they will be in use by the end of the year, not April, and may only be issued as “guidance” rather than being made compulsory.
This change of tack is probably partly to do with the consultation feedback from solicitors and other practitioners. Standardisation at the touch of button, saving cost and time. Nice ideas but rather more difficult to produce in practice that in theory.
Sir James Munby said in his “View from the President’s Chambers (4) last year that
“Inordinate amounts of time and money are spent – wasted – in the process of drafting orders that could, and therefore should, be standardised.”
That was last November at which time he confidently said that work had begun and was well advanced. But here we are in mid February and we are now further away from a final set of precedents which may no longer become “mandatory”.
There is no doubt that some consent order clauses are absolutely standard, for example the clean break clauses. I would be very surprised if there was much difference around the country in the detail of these clauses. Indeed so standard are they that it is very easy and quick to produce a simple clean break order and this is of course reflected in the price I for example charge for this type of document. The majority of the work which goes into the production of these orders is checking that they don’t appear totally unsuitable for the person paying for them.
However, there is an increasing tendency to use language which gives the impression that all consent order drafting is “easy”, that it can all be done by tickbox work. And therefore that it is over-priced.
That is not helpful for anyone, not the lawyers clearly – who have to work harder to justify their fees – but also not the client/customer/court user who are either using unregulated cheap online services or trying to draft their own.
This is not to say that there can’t be any standard clauses. Of course there can and it will rightly cut the time and cost of drawing up and approving agreements/orders if there is some degree of standardisation.
But we are not all standard and we should embrace this fact not see it as a cause of frustration.
For most people on average incomes in Britain today there’s rarely a time where it is more important to save money than when you are going through a divorce.
That’s why it is music to the ears to hear unregulated providers of legal services tell you that you don’t need to use a solicitor, that we all overcharge, that we are “money for old rope”.
When I receive handwritten agreements from my clients who want me to draw up a consent order to make the agreement legally binding, I will usually make suggestions which the people did not think of.
My experience, sadly, is twenty years of seeing first hand how people fall out and what commonly causes those fall outs.
I use that experience to advise people on how to convert their agreements into consent orders that will work for them both now and in the future, avoiding conflict further down the line.
I take the basic idea and put together clauses that I hope will survive most tests. I tell my clients where I think there are weaknesses in the agreement which either of them may find difficult as the months or years pass. Where possible I suggest alternatives – taking into account the fact that they will not want necessariy to upset their basic agreement.
This is the work that I do. It is not aggressive. It is not money for old rope. It is all about putting my client’s first and that means taking into account relationships and feelings as well as pounds and pence. It is anything but standard.
With the increase in mediation as opposed to court proceedings it is inevitable that agreements are going to be more flexible, more unusual than orders made at court. This is one of the advantages being promoted by the judiciary and the government.
The difficulty is that these agreements have to be converted (under current law) into consent orders to be made legally binding. For any agreement to have any substance or enforceability the terms have to be really clear. For them to be court orders they have to come within the types of order a court can actually make. People who are not familiar with the Matrimonial Causes Act will not understand this, will not know what can and cannot be made into an order.
So what is my point?
Standardisation is harder than it looks to the general public.
Even the President of the Family Division who so confidently stated that he could “under the determined leadership of Mostyn J…..provide us with a comprehensive set of orders the use of which will in due course become mandatory in the Family Court and the Family Division.” is discovering that this is easier said than done.
Standardisation does not work easily in conjunction with the promotion of flexibility in mediation. This is a quote from the National Family Mediation website –
“When you go to mediation you will be making your own arrangements that suit you in your unique circumstance. You will decide how to divide your property and finances. You will decide what is best for your children and how you can work as separated parents.”
What is likely to be standard about that?
So we need to accept that tailoring court orders to the new framework of mediation is going to be tricky.
Let’s not dumb down the important complicated work done by the majority of family law solicitors.
By all means criticise those who milk their clients for all their worth to line their own pockets. Please do also continue to promote alternatives to court.
Let’s all embrace finding solutions together and minimising conflict and the associated stress and expense.
Let’s standardise where we can but don’t over egg the pudding. It can’t be comprehensive standardisation unless we’re all standardised too.