Once, back when I was a full-time solicitor, I was telephoned for a divorce by a nice married couple. They were sitting at the kitchen table in one of their houses, having been separated for a number of years and each was happily living with a new partner. They were friends, and they wanted a friendly divorce. Financial matters were simple after so much time, but I remember advising that I could not act for both of them, and that I would take instructions from one, keep it really amicable, and ensure the other knew that they should get independent legal advice. 

In that spirit, I was sort-of pleased to see the judgment of Mostyn J in JK v MK (E-Negotiations Ltd and the Queen’s Proctor intervening) [2020] EWFC 2. The ‘sort-of’ will be explained. The case concerned a couple who wished to divorce after a short, childless, marriage and who instructed E-Negotiations Ltd, who trade as (lower-case) ‘amicable’, to draft documents for them. The courts, having received documents on amicable’s letterhead, referred the matter to a judge to consider whether 

1. amicable had a conflict of interest by acting for both parties, and 
2. whether they were engaged in reserved legal activity, the conduct of litigation, which is an offence under the Legal Services Act 2007. Only authorised persons (which can include law firms) can conduct litigation – this blog post by Andrew Hopper QC is a useful explainer. The conduct of litigation includes ‘preparing a document for use in legal proceedings’.

Mostyn J found that:

1. Amicable’s business model did not create a conflict of interest. Amicable’s system raised alerts when there were certain circumstances capable of creating a conflict of interest, such as  the presence of domestic violence including psychological abuse; alcoholism or mental health issues; where one party has already instructed a solicitor; where one party is unprepared to negotiate; and where there is a suggestion that assets have not been fully disclosed. ‘On such a flag being waved, amicable will decline to accept the case and send the parties to solicitors. In my judgment the existence of these red flags entirely neutralises the risk of any conflict of interest arising.’ Thus amicable should only acts in situations where there is no potential conflict of interest.

• Amicable was not committing an offence because they were not conducting litigation. If I have understood this right, what happens is that the client puts information into a website form, and this is filtered by software into the relevant legal documents, and then someone at amicable checks them over. The checking of this document and presumably its correction could only be the conduct of litigation if that person was both a major contributor to its drafting and filed the document with the court. Minor corrections would, on this basis, seem to be alright even if done by someone unqualified. Amicable’s clients sent the documents to court under amicable’s letterhood and that had to stop, but that was the only conduct issue. They would also have been ok if they had prepared the documents in question and filed them at court but did not charge.

My personal reaction, if there was an actual High Court hearing about whether my business model was legal, would be something approaching embarrassment, but not so in this new legal era. Amicable put out a press release. Some journalists, absent actual research, simply reported this as ‘now couples can divorce without a lawyer’, which must come as something of a surprise to the thousands who already do. But one of the issues with the increasing numbers of self-representing litigants is that they are very often not aware that the financial claims that each party has against the other on divorce are not terminated by decree absolute, but only by financial remedy court order, and that it is thus possible for a long-divorced spouse to come back for financial support years later – twenty years in Wyatt v Vince [2015] UKSC 14.  There are many more divorces each year than financial remedy orders and that is concerning. Organisations that attract people who don’t or won’t use solicitors, and who offer them a financial remedy order alongside a divorce are therefore potentially doing these people a favour, if they are alerting them to the need for a financial remedy order.  

But – and it is a big ‘but’ – there are definite risks to the clients of models like this. Amicable clearly has screening, but it is on the right side of the law because it does not provide advice. As far as I can see, nowhere on their website is advice mentioned – a coach will help the parties work out their own agreement. Amicable’s model is premised on a great deal of client self-help, and with that comes client ignorance about the law. That’s not of course the fault of clients, because like many areas of law financial remedy law can be convoluted and difficult to locate in case law. And amicable seems to be aimed at people who don’t want advice. But all lawyers will have met clients who were labouring under misunderstandings about fair settlements: clients who thought equal division was appropriate when one party has considerable needs requiring more; clients who overlooked pensions; clients who felt under pressure to settle. Agreements between clients are all very well, but unusually in law the parties’ agreement as to the terms is not definitive: a judge has to assess the outcome of a divorce as fair, through the prism of s25 Matrimonial Causes Act 1973 and the case law, especially Miller/McFarlane. There is also more than one way to draft a consent order, even if broad terms have been agreed. In the case of spousal maintenance, for example, should there be a s28(1A) bar? Should it be indexed to RPI? Should it be expressed as a single lump sum paid in instalments instead, depending on remarriage potential? If you’re not told these options exist, you’re not able to make an educated decision.

And that’s the issue that I had with the couple I wrote about at the top of this post. I certainly wanted to act for both of them, but I was pretty glad I could not.

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Feature pic : P Morgan – Divorce Cupcakes