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Separation – at what cost?

In September of this year wealthy English solicitors, Giles and Anna-Marie Kavanagh, hit the headlines after reducing their multi-million pound fortune to approximately £90,000 between them through acrimonious divorce, child and maintenance proceedings spanning a period of approximately 5 years. Their combined legal bill was in the region of £1.8 million pounds. This bill is staggering and the story will add fuel to many family law clients’ concerns about the legal fees that they will incur in trying to resolve their disputes. So how can family law clients minimise their legal expenses? It is sensible for all clients to meet with a family law solicitor before deciding how to proceed so that a range of options can be discussed.
Firstly if the client is able to discuss matters directly with their estranged spouse or partner, it may be that the simplest and cheapest way for them to proceed is by what is known as an “implementation only” agreement whereby each client instructs their solicitor with details of the settlement that have agreed with their spouse or partner and the solicitor will formalise that into a legally binding agreement. The lawyer will not be able to give legal advice on whether the agreement is fair and reasonable in terms of the law governing the division of a couple’s assets on separation but it may be that, for some clients, they are quite content to agree matters on that basis and thereby will significantly reduce their costs.
A second option for clients is to attend a suitably qualified mediator with a view to trying to reach a settlement. Ordinarily the mediator would have a similar charge out rate to a solicitor but this would normally be shared between the parties equally rather than each party paying their own solicitor. Clients can take advice from their own solicitors along the way if they so choose but, in theory, this should be limited to contentious matters only which again ensures costs are kept to a minimum. If a settlement is achieved the clients then simply require to instruct their solicitors to draft an agreement as above.
Thirdly, another option is the traditional negotiation model, whereby solicitors, usually through correspondence, ingather relevant documentation and information and use this to make legal arguments to justify the position that their client is taking on financial and/or child related matters. Such cases can take some time to complete as inevitably a dispute can become protracted over a number of letters and therefore the case can continue for a number of months even years.  
A fourth option that is growing in popularity is Collaborative Practice in which clients instruct their solicitors to negotiate a settlement which represents the best outcome for both parties and any children of the relationship. In collaborative cases there is no correspondence between the collaborative solicitors. All matters are discussed at meetings with both solicitors and clients present. Solicitors working collaboratively are barred from threatening to raise court proceedings in an attempt to secure settlement and, indeed, if the collaborative process fails and the clients wish to go to court both collaborative solicitors and any experts require to withdraw from acting. The clients then require to instruct new solicitors and experts to act in the court proceedings. Whilst there is no guarantee that the collaborative process will be cheaper, this can be the result on the basis that it is a more constructive forum for resolving matters and it can often lead to a faster conclusion than with the traditional negotiation approach.
A fifth final option has recently presented itself in the form of Family Law Arbitration. In such cases a suitably qualified arbitrator is selected by the parties’ solicitors to deal with matters and a great advantage of the process is that it takes place in private unlike the majority of court proceedings. The model can deal with an overall resolution to a case or be confined to determining a specific issue. The rules governing the process are designed to deal with matters efficiently and whilst this will not automatically mean less cost in every case it is to be hoped that this will be an added benefit to many cases.
There will, of course, be some cases where there is no option but to raise proceedings in court which, as we can see from the extreme example of the Kavanaghs, significantly increases expense. Clients must bear in mind that the usual rule that the unsuccessful party pays the successful party’s expenses often does not apply in family cases. In financial cases the position is often not clear cut and accordingly there could be a broad range of possible outcomes for the client. Clearly this must be borne in mind and weighed up against the vast cost of a court action. As with the other options clients can limit their legal costs by taking certain practical steps. This could be in the form of collating some of the straightforward documentation that may be required. Further it may involve looking to other professionals who can assist with the non legal aspects of the case. Family cases, whether in court or not, are understandably hugely stressful for the clients involved. They are often hurt, angry and frightened. They can feel that they have lost all security and stability in their lives and are concerned about how they and any children will cope in the future. In the collaborative model there is the option of involving coaches for each client. The coaches will assist the clients through these emotions which, in turn, better equips them to deal with the legal issues involved in their case. Indeed, there is a lot to be said for clients to attend coaches or counsellors or other suitable therapists in all family cases. Where such a therapist is not involved clients will often look to their solicitor to assist. The difficulty with this is three fold in that the solicitor is not trained to deal with these matters, it can make it extremely difficult for the client to deal with the legal issues at hand and the inevitable result is an increase in legal costs which simply causes further stress to the client.
In summary, to avoid a Kavanagh style bill, clients can minimise their legal costs, with the help of their solicitor, by choosing a model that best suits their particular circumstances and by taking practical steps, such as those mentioned above, to limit, where possible, the non legal work that the solicitor requires to carry out.
For any information or guidance relating to Family Law please contact Shona Smith.