REVIEW From an insider, damning testimony of how our legal profession adds to the misery of marital breakdown
By Anonymous top divorce lawyer
Spouse getting fractious? Marriage in trouble? Already separated, but at loggerheads about access or money: ‘I have to get a lawyer, don’t I?’ The idea is well entrenched: some people seem to think it’s compulsory to use a solicitor to divorce, and it suits us that they do, obviously.
We don’t tell you this, but for a start you could handle the whole thing yourself. What’s right for a child is not a legal question, it’s common sense. They need Mum. They need Dad. They need the security that makes them feel loved. You don’t need a law degree to know that.
The only reason for employing me or any other solicitor or barrister is that I can give you a bit of professional distance. Help you see the wood for the trees. Give you an idea of the ‘going rate’ in child contact orders or asset splitting.
That rate is simple to explain. Mum gets the kids. The house may have to be sold to buy a smaller one for her and a bedsitter for him. A whack of money may change hands. And it’s better for a father to agree to pay child support rather than expose himself to the Child Support Agency nightmare.
It’s not written down anywhere, but normally Dad gets the kids every other weekend and half the holidays provided Mum doesn’t try to block him, in which case there is little I will be able to do for the father. Many men give up under this pressure, but determined ones should represent themselves. I’ve known of plenty of cases that have gone to court 50 times or more. You’ve got to enjoy bankruptcy to employ me.
It is probably worth reflecting this Father’s Day that no profession has done more than mine to dissolve the link between Dad and child.
But as a couple you are free to agree a scheme between yourselves: these days shared parenting is more and more popular, especially when Mum works.
And if, despite agreeing things, you feel you need the force of a court order, then there is nothing to stop you filling in a form, paying a modest court fee and getting a judge to rubberstamp your agreement.
Now that I’ve explained this, you no longer need employ me. I’ve given away all my secrets already. Of course, it’s quite likely you hate each other, but you should still try to avoid me and go to mediation. It is so much better to agree something along the lines of the ‘going rate’ because it is what will be ordered by the judge anyway.
You could even go for conciliation and try to save the relationship. In fact, if you’ve got children, that’s probably what you should do.
As a solicitor it’s not my job to save marriages. I am a member of the Solicitors’ Family Law Association.
The SFLA has an excellent Code of Conduct which encourages both mediation, which is an attempt to reduce conflict in divorce, and conciliation.
But we rarely mention conciliation, and our clients naturally confuse the two. Confused is the way we like our clients.
But we solicitors were never too keen on mediation, a vital plank of the no-fault divorce reforms shelved last week by the Lord Chancellor Lord Irvine, since it took business away from us.
Any new client comes into my office in a bit of a state, filled with anxiety, outrage, grief or anger. It’s a good time to warn about the cost of employing me, because at this stage the client is not thinking straight, and the implications of what I’m saying about my hourly rate generally go in one ear and out the other.
I put on a grave face and say: ‘I should warn you it may cost you several thousand pounds.’ My dishonesty is not deliberate: if all goes to plan, three or four thousand is about right. But in real life it is rarely enough; the usual counting unit has four noughts on the end.
Skint couples are fine because they get Legal Aid, though the Legal Aid Board is so hopelessly overworked and inefficient it might be several months before I can start work on the case. That’s sad for a father who’s not getting to see his child, or a mother who can’t meet the bills. On the other hand, the Legal Aid Board’s inefficiency can work to my advantage.
To justify a big fee I hit them with mountains of paperwork. They haven’t got time to check whether I really needed to engage in detailed correspondence with the other side’s solicitor about the cut on little Johnny’s knee when he came back from a visit to the other parent. Or why, when four points could be made, I wrote four letters when one would have done.
Besides, I get a different Legal Aid Certificate for each part of the case, so they never spot the overall cost. Amazingly, Legal Aid statistics report no family cases costing more than £50,000.
A little known fact: the average divorce costs £29,000. That’s any divorce, not just Mishcon de Reya acting for Princess Diana, but Legal Aid ones too. £100,000 is not uncommon and I know of several costing £500,000 or more.
A fact we don’t overemphasise is that Legal Aid is often not free. It is a loan. Many unscrupulous lawyers fail to explain the implications of what’s called the Statutory Charge. You have to pay the money back. Legal Aid is only free for those who can’t pay.
The most common victims of this are the wives. Sometimes, when representing a husband in a financial case, a feat of brinkmanship will have me take it all the way to the courtroom corridor before settling just before the usher calls us in front of the judge.
Along the way both sides will have hired barristers to present the case: up to a thousand quid each for the day in court. I could present it myself, but I like to give one of my friends a bit of work. Besides, he has special skills of advocacy (ie, he’s as pompous as the judge).
Then, at the last moment, the barrister and I present a compromise settlement. A big smile sweeps across the wife’s face as she’s offered £30,000, say, in final settlement of the divorce.
Much later, when she gets home, she’ll begin to wonder why she hasn’t got the money. It’s not that the husband has stashed the dosh in Liechtenstein. He’s paid up all right, but, oh dear, she is informed that she owes the Legal Aid Board the entire sum.
All those affidavits, and the law allows her to keep £2,000, and er, that’s it. If the sum is tied up in the house, she has to pay interest to the Legal Aid Board, too.
Legal Aid clients are one thing, but I prefer those who pay their bills themselves. Legal Aid comes in at between £59 and £63 an hour. My private rate is £130 an hour, a bargain against some of the posh West End solicitors who charge up to £200.
Don’t make the mistake of thinking ‘expensive’ equals ‘good’.
I took over a file from a household-name solicitor sacked by a wife who had been quoted £10,000 to sort out a problem.
The husband had reopened the case which would probably have been impossible if that household name had closed what I thought were obvious loopholes in the first deal. The wife had already paid out £15,000 when I got the case, and we were still a long way from resolution.
We lawyers rarely attract sympathy, but feel sorry for me for a moment: getting paid can be tough. The canny client refusing to pay my bill can often get away with it. It’s embarrassing for me to sue someone I’m supposed to have been helping.
I make it sound as if money is my main obsession. It isn’t. My idealism has been somewhat diminished by experience, but I’d like to sort people out as quickly and cheaply as possible.
But the system is bigger than me. Aggressive solicitors abound. We’re all members of the Solicitors’ Family Law Association, but it has no teeth. Not once in its history has it upheld a complaint against one of its members. So its compassionate Code of Conduct is meaningless.
I know from the moment I open the first letter from the other side’s solicitor whether the case will settle amicably or not. With certain names you know it’s going to go all the acrimonious way. Some solicitors relish being labelled as a certain type, like ‘The Rottweiler’.
It disgusts me when clients try to take their revenge on their ex through their children. If the client is hell-bent on such destructive action it is not long before they sack me and get someone more aggressive who will take their instructions without a qualm. ‘I was just taking instructions’ the classic concentration camp guard defence.
How do solicitors stir things up between the couple? A typical pattern would be a proliferation of letters about staggeringly unimportant things, like that cut on Johnny’s knee, all blamed on the other parent.
Some solicitors become emotionally involved in their clients’ cases. I’ve even heard of several cases of solicitors sleeping with their clients. But female clients especially can become very attached to the support they get from their solicitor, developing the kind of respect they normally reserve for their gynaecologist.
I even know of one who took his client to the opera, slept with her then sent her a bill that included the cost of the tickets and the time between when he left the office in the evening and returned in the morning.
Incompetence is widespread.
We’re the Cinderella’s of the profession.
The glamorous, well-paid end of law is commercial, so that’s where the talent goes.
Ours is stressful, demanding work, the pay (by solicitors’ standards) is bad, so inevitably we get the dross.
I had hoped the mediation revolution would take hold. When a couple split up they need help from an expert in adult relationships, children and accountancy.
Nowhere in our training do any of these skills reside. We’re the wrong people for the job.
Our training is all cold law and hard-nosed, adversarial litigation. All too often I make things a whole lot worse; it’s hard to imagine a less appropriate profession for handling people at their moment of peak stress. But as the old saying goes, there’s only one winner in divorce. Guess who.