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Representing both parties in a divorce

As attorney it occasionally happens that both the husband and wife consult you together to represent them jointly in their divorce (a so-called unopposed divorce). This does not happen often as a divorce is very often an acrimonious affair with bitter feelings between the parties. However at times the parties decide to end their marriage on good terms, and to save exorbitant legal costs, decide jointly to use a certain attorney.

In the abovementioned kind of situation it is the ethical duty of an attorney to act in the interests of both parties, and not just to side with one specific party. I as attorney would usually advise both clients together what their rights are and what they would be advised if they had consulted any other attorney. It is up to the couple to decide whether they want to use me or not after I have advised them.

However it does sometimes happen after an initial joint consultation with a couple that one of them decide to get their own attorney, as they think that that would be in their interests rather than sharing the same attorney as their spouse. From an ethical viewpoint there actually is a duty on you as attorney to withdraw from the case at that point.

An attorney is not allowed suddenly to act against a client who he used to represent in the same divorce. This would be a clear “conflict of interest”. An attorney can get into serious trouble with the law society if he is found guilty of this. If a complaint is lodged against him/her, he/she may receive a big fine or even be suspended from practice.

I recently had a similar case where a man and lady consulted me together. They were living together at that stage when they first consulted me. A settlement agreement was signed and we were all preparing for our day in court for the divorce to be finalised. However just before the day in court the man moved into a house with his new girlfriend. This infuriated his wife, who was no longer happy with the terms of the settlement.

In the abovementioned case a situation arose after the man moved out of the matrimonial home where both he and his wife were contacting me individually to discuss the maintenance and other related issues. I advised them that from an ethical viewpoint I have to protect both their interests together as I was instructed by them together.

Eventually in this case the one party decided to consult her own attorney, as the matter had clearly not been settled. I then advised her husband rather to consult his own attorney. From an ethical viewpoint I could not act against his wife as she had previously been my client in the same divorce action.

It is very important for us attorneys to uphold the ethics of the legal profession. We always have to act with the highest integrity and do the honourable thing in certain situations. The Law Society of South Africa has rules of ethics which need to be adhered to at all times.

Representing both parties in a divorce

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