Non-lawyer preparation of a consent order
The extent to which a non-lawyer (called ‘amicable’ – all lower case) can help a couple jointly to prepare and file a financial consent order application has been explained by Mostyn J in JK v MK & Anor [2020] EWFC 2 (20 January 2020). But can this model work for mediators or lawyers acting jointly for couples who have no conflict in the matrimonial settlement?
JK and MK were married in 2015. They had no children. They separated in December 2017 without capital assets. Each was earning. They wanted a clean-break financial relief order. They approached amicable who helped them prepare divorce papers. amicable did not need to help the parties with finance negotiations since all was agreed between them. amicable drafted the order using the relevant Standard Family Orders precedent and Form A.
amicable helped the couple to prepare the statement of information for a consent order in relation to a financial order and to prepare a joint statement of legal responsibilities and disclosure of assets (not required by the rules, but ‘extremely helpful’ said Mostyn J (see [3])). amicable charged for all this.
But was amicable ‘in a position of conflict of interest in acting for both parties’ (see [6]); and was amicable was doing things not permitted to non-lawyers under Legal Services Act 2007? These two questions were listed before Mostyn J. The Queen’s Proctor was invited to intervene (Matrimonial Causes Act 1973 s 8).
Mostyn J records Kate Daly (at [13]), the founder of amicable (set up in 2015 following her own expensive and acrimonious divorce), as saying in her witness statement:
The desire to help people navigate their divorce positively, to improve access to justice (for the many not the few), and to avoid the emotional pain I and my family had experienced, drove me to investigate an alternative way to sorting out divorce and separation.
But did this aim to help both parties and to avoid being engaged in the conduct of litigation, even so, raise any question of a conflict? The Queen’s Proctor thought not; and Mostyn J plainly agreed. amicable had a system of warnings (‘red flags’) to alert them when to refer on to solicitors (eg domestic abuse, alcoholism, suggestions of non-disclosure).
In the light of his findings Mostyn J was willing to make a declaration (at [21]): ‘that amicable is not placed in a position of conflict of interest by acting for both parties under the terms of its business model’. But what of Legal Services Act 2007 s 12? Was what amicable were doing a ‘reserved legal activity’. Literally interpreted the Act might be said to prevent preparation save by a lawyer of any legal document; but such ‘literalism’ must be avoided. The documents did not ‘violate’ the 2007 Act. Mostyn J declared accordingly. He suggested that the Family Procedure Rules Committee might want to consider an amendment to the Form D8 application accordingly.
