When to use a solicitor or barrister

Divorce proceedings are in two parts

Divorce will change your life. Of course you will want to make sure it changes your life for the better.

There are two distinct parts to the divorce process. In the first place is the actual divorce which changes your legal relationship with each other. That is all it does.

The second part is what the law refers to as “ancillary proceedings”. They are not really ancillary at all. For most of us they are by far the most important of the two parts. Ancillary proceedings most usually cover children, money and home.

In this article, when we mention “divorce”, we are probably talking about the whole process in the round.

Stop and think before you instruct your solicitor

Even if divorce strikes you first only when you receive a letter or petition from your partner or his solicitor, STOP and take stock of your situation before you rush off to a solicitor. You certainly do not need to instruct a solicitor for the legal separation part.

Your solicitor is likely to charge from £200-£400 an hour, depending on where you live. He/she will charge in 10 minute units so you don’t need much of a phone call to lose what you had set aside for a new pair of trainers for one of the children.

Maybe you have money and you are really not concerned about spending £10,000 for a solicitor to hold your hand through a tedious process, but one in which you and your ex-partner are largely in agreement. No problem.

Much the same applies if you are not in agreement, except that the bill will be far higher.

Solicitors now accept the requirement to mediate

Although solicitors are now encouraged both to collaborate to encourage mediation for separation and divorce, some solicitors find it difficult to accept that their client’s best interest might be served by a process other than litigation.

The best way to deal with this conundrum may well be to appoint a solicitor on the basis that you do not require him/her to handle every aspect of your divorce process, but rather, to be available to cover the gaps in your competence. You may need to make this very clear to your solicitor at the outset. Some solicitors will insist on all or nothing.

So, after considering what we have said in this article, if you have not already appointed a solicitor, now might be a good time to find one.

Control what you spend on your solicitor or barrister

Of course you will have spent a lot of time refining your financial plan. This may include an allocation of money for legal costs. When the time comes you might find that you need to spend little or none of that legal costs allocation. You need it in case your ex-partner suddenly appoints a solicitor to take unexpected action through the Court and you have to respond.

A solicitor’s role is to help you in any way he/she can. Because that is his living, of course there will be an element of marketing in his first approach. You should explain that you do not want help with the basic divorce process but that you expect that you will need occasional help for a specific task or advice in dealing with money, children or some unforeseen event.

Although it is certain that you will be discussing your affairs with a mediator at some point you should not rely on him/her for even the lightest of legal advice. A mediator’s neutrality will always prevent him/her from advising you how to win points over your ex-partner.

Manage your time with your solicitor

It is extraordinary how many clients will sit with their solicitor for over an hour when the conversation could have been managed in 15 minutes. You should not feel beholden to your solicitor in needing to speak other than shortly and directly.

If you find that your solicitor insists on recording everything in manuscript, then you should immediately ask him/her to stop and tell you what precisely he/she needs to know. You can then put all that information together in soft copy and send it to him/her by email.

When it is obviously necessary for you to relate your story, it is still best to answer his/her questions briefly.

Form D81 and application for financial order

The most important document in connection with your application for a financial order is the fearsome and encyclopedic Form D81. Even if you have managed your entire divorce process to date without legal help, you might just decide that Form D81 is a bridge too far and that you will instruct a lawyer for help.

The form is extremely comprehensive and some of the questions may be considered a little technical. If you go to your solicitor or barrister for help with this form, he/she will need to ask you many questions, absorb a great deal of details about your financial affairs and give you substantial advice along the way. This could take several hours.

However, to conclude your affairs satisfactorily, you have to attend mediation at some point. There is no alternative. In the course of the mediation process, your mediator will of course pick up a great deal of the information required for the Form D81.

Our service specifically provides an option for a lower cost alternative to sorting out your Form D81, as follows:

  • Download the form now from https://www.gov.uk/government/publications/form-d81-statement-of-information-for-a-consent-order-in-relation-to-a-financial-remedy
  • Read it carefully and mark the items where you do not immediately have the information.
  • Find the missing information. Some of it will require some sort of confirmation or documentation from a third party. Obtain that information.
  • When you book your mediation make sure you include additional time where the two of you can get together with the Mediator to run over your form with each of you and better prepare you for a shorter time with your solicitor or barrister and probably a more accurate submission to court.

The Mediator will help you only on the basis that both of you attend together at the same meeting so as to avoid any suspicion that issues have been hidden or forgotten. To deal with this form for both of you is likely to take between one and four hours, depending on the complexity of your affairs and extent of your preparation.

The best time to deal with it is after the conclusion of your mediation and the signing of your settlement agreement. If any new information arises from the Form D81 exercise, then the settlement agreement can be edited and re-signed.

In giving you this help, the Mediator will not be acting for you nor formally advising either of you.

At first sight the law and procedure appear to be incredibly complicated. However, with the right help, and careful management, you can manage the entire process yourself.

The Mediator cannot help with your financial order

You will have gathered by now that you should not expect your mediator to set up a draft consent order. In the first place, the Mediator can never provide a legal service to you as an individual. Secondly, the points of dispute where you expect the Mediator to help you, may not include all of the points that should be included in the draft order.

Third, whatever you do negotiate with the help of the Mediator, it is likely to include a level of detail which is inappropriate for your consent order. The Court is simply not interested in your arrangements for picking up your children after their Saturday morning sport session.

Most mediators will strongly support the proposition that you should sign and date a record of what you have agreed through the mediation process. That will be purely for your own use and will not be binding at law, except insofar as the same terms are covered in the consent order.

So you thought you needed to instruct a solicitor or barrister either for specific work or simply to have a lawyer available as and when required. Now maybe it’s time to consider some of the many other aspects of your divorce you may wish to understand a little better.