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Online and out of line

15 October 18

A family lawyer is concerned at cases of clients of unregulated online divorce advisers being badly advised, and believes the profession, and the Society, should do more to counter this

by Jennifer Gallagher

The legal services market is now a competitive place. Clients are far more cost conscious and many will research online for solutions to legal issues well before picking up the telephone or arranging a face to face meeting with a solicitor. This is very true in the area of family law.

A few months ago, the catchily named Amicable divorce app launched, offering users what it described as “Divorce Reimagined – the faster, fairer fixed price way to separate”.

The ethos behind the app is sound. One of its creators experienced a costly and acrimonious divorce. The idea is to help people through what can be a very difficult time. There is a great deal to be said in favour of giving couples the tools to think about the childcare and financial issues that arise on a separation. For many who are separating, money is tight and keeping a lid on the legal bill is a priority.

Scottish couples should be wary, though. The Scottish legal system is very different to the English one. This app is designed for the English system and should be used with caution. The legal framework is very different, and in Scotland the majority of financial divorce settlements are negotiated and set out in a written separation agreement, or minute of agreement which does not go anywhere near the court. This is very different to the English system.

There are now Scottish internet resources out there too. One of these is a website called Scottish Divorce Online. The website tells visitors that they are “legal divorce specialists” and goes on to say that the website’s consultants have over 30 years’ experience. Visitors are called upon to “Trust in our wealth of experience to deliver the results you need, so you can have peace of mind while we handle the details”.

The site sets out a number of low cost, fixed price packages available to purchase. What the site does not explain is that legal issues arising on separation are complex. A specialist family lawyer will get the full story from the client and will give the client more than just an outline of what the law says. The client gets bespoke legal advice drawn from years of experience dealing with cases.

Regulation concerns

Solicitors are regulated by the Law Society of Scotland. To become a solicitor, an individual must undergo education and training as well as being certified as a fit and proper person to become a solicitor. We all carry out regular CPD to ensure standards are maintained. Firms must carry professional indemnity insurance, and we contribute to the Client Protection Fund which is there to protect the public if things go wrong. Complaints can be brought to the Scottish Legal Complaints Commission, which has powers to compensate clients if the job has not been done properly.

Websites like Scottish Divorce Online do not offer such protections. While there is nothing to stop a person describing him or herself as a lawyer, the term “solicitor” is restricted and s 31 of the Solicitors (Scotland) Act 1980 makes it an offence to pretend to be a solicitor. Members of the public often use the terms “solicitor” and “lawyer” interchangeably with no appreciation of the distinction. It is easy to see how to a member of the public, there may appear little or no difference between an unregulated website and a qualified solicitor.

Members of the Family Law Association in Scotland (FLA) have reported that they have been approached by clients using online divorce services. For instance, if you purchase a divorce online, you still need a solicitor to sign affidavits and apply for the divorce decree. A FLA member said: “I recently had a client who came in asking me to notarise affidavits prepared by this company. I did not know the client and he had brought no identification, and accordingly I declined to notarise. However, I did have sight of the affidavits, which were unlikely to have been prepared by a lawyer, much less one with specialist knowledge!”

Another member reported: “I recently had a call from a potential new client asking that I arrange service of her divorce writ on the husband defender. The lady explained that the 'lawyers' she was using were Scottish Divorce Online. She had no idea they were not lawyers, did not seem fussed about that and was just following their instructions to have the writ served, thinking this was usual…

“I am concerned that this company, while not holding themselves out as [solicitors] on their website, are giving the impression they are and then are expecting law firms to do certain of the work on their behalf. This creates an additional cost to the customer, raises insurance issues for us if we assist, and why would we be the fall guy? This lady did not seem troubled that they were not lawyers, which was also concerning. Perhaps the whole “online” thing is giving the wrong impression that advice actually pertinent to a person’s circumstances isn’t important at all; the convenience/cost is what the customer is driven by.”

More worryingly, FLA members are also coming across situations where more complex legal issues are simply not being picked up or the information being given to the client is simply wrong. For instance: “I had a client recently who attended with documentation produced by this website. The client was distraught, having been told the family home had to be sold and she should accept 10% of a pension. Both wholly untrue and very damaging had she not realised. She is also vulnerable, which made it even worse.”

Pension sharing: poor advice

In another case, the client needed pension sharing advice, which any family solicitor will explain is a complicated area, requiring a carefully drafted minute of agreement and also separate financial advice for the client. That client was given pension sharing advice. There are costs involved in implementation of pension shares, and there is a strict time limit of two months from the date of decree to deal with implement. The FLA member reports:

“I have recently had a client produce a separation agreement which he had signed last year. It has a clause in relation to pension sharing which is not in the correct form and has no schedule.

“It specifies that 'the First Party shall raise an action of divorce on the grounds of one year separation with the crave for a pension transfer order and the Second Party shall consent to the granting of decree of divorce and the said pension transfer order. The costs of the said divorce shall be borne equally by the parties'.

“I advised my client that there was no need to obtain a pension transfer order from the court, particularly when the parties’ daughter is 14 years of age and simplified divorce beckons in two years.

“His wife who obtained the separation agreement from Scottish Divorce Online forwarded an email from… there [which] stated:

“ 'Unless your husband's pension provider will do this based on an agreement there will have to be a pension sharing order to effect the pension share. He can check with them now if they will accept an agreement or want a court order. In my experience almost all pension providers want a court order.

“ 'The way that would work is that you would raise a divorce action based on one year separation with your husband's consent as provided for in the agreement. The divorce would include a request for a pension sharing order in precisely the amount set out above i.e. £8,692.78. Your husband will therefore see in advance of the divorce being granted that you are not asking for anything more than has been agreed. A copy of the divorce rate is sent to the pension company as the court rules require. They will not do anything at that time.

“ 'Your husband would sign a consent form as agreed. We then do affidavits which set out the basis of the divorce and the basis of the pension sharing order. Given that this will be a consent divorce I have never seen a pension sharing order being refused.'

“The email goes on to set out the fees being charged by Scottish divorce online and states: 'once the divorce is granted you have to send the pension sharing order to your husband's pension provider to effect the transfer. They may charge an admin fee that your husband does not require to pay that as he has only agreed to pay half the cost of the divorce. I have no idea what their admin fee may be'.

“Obviously this email is worrying. The advice given is plainly wrong in relation to the pension sharing provision and normal practice. My client's wife is apparently going to end up paying the entire cost of a pension sharing order which should be shared with my client. She may well get this wrong. I have pointed all this out to my client, but it is his pension which is to be shared and his wife is resistant to the idea of a supplementary minute of agreement to put this right.

“I am very concerned about the quality of the separation agreement which is being provided online by these people and the fact that incorrect advice is being given which may well cause loss to their clients.”

Tailored approach

Every family is different, and the issues in every separation case turn on the particular needs of the family involved. It is easy to underestimate the value in taking timely, expert advice on separation. An expert family lawyer will give detailed advice, tailored to the client’s own particular circumstances.

Clients can control costs by taking advantage of an initial fixed fee advice package. The experienced family lawyer will talk the client through what to expect in terms of costs. Many legal firms will invoice regularly as a case progresses – avoiding an unpleasantly large bill at the end of the case and letting the client properly budget.

The client can also use the lawyer wisely as a resource. The client who lets the lawyer guide him/her on the information to be gathered and then goes and does the legwork will save on costs. If clients can try to keep lines of communication open, spouses can have detailed discussions together about what makes sense for the family. The lawyer can then step in as needed to offer advice and guidance. It is usually far more costly to unpick something that has been done without the benefit of family law expertise after it goes wrong than it is to make sure a separation is finalised properly at the outset.

In addition the legal profession must do more to demonstrate the great value and high quality service we offer clients. The Law Society of Scotland in its role as protector of the public must do more to raise public awareness about the pitfalls of using this sort of online resource as opposed to a properly trained, insured member of the legal profession.

Jennifer Gallagher is a family law partner with Lindsays, Dundee, and vice chair of the Family Law Association


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