Q&A with Harry Gates and Samantha Woodham of the Divorce Surgery

4PB barristers Harry Gates and Samantha Woodham are pioneers of the “One Couple One Lawyer” model, having set up The Divorce Surgery in 2018 and being the first regulated firm to offer this service to clients. Since then, they have won numerous awards for innovation and received hugely positive judicial endorsements. Sir James Munby called the business “…a striking example of what can be achieved by those with the vision to see outside traditional approaches”. We spoke to them to learn more about how their service works.

Q1: Can you give an overview of how the Divorce Surgery process works?

A major part of what we do is advise couples together on ‘what a judge would do’ regarding their money or children. In either case, couples are first seen individually to screen suitability so we can understand the likely issues. Then, they are given a fixed fee quote.

In a children’s case, after we have brought in any external support needed (co-parenting expertise, for example), a barrister of suitable experience would advise the couple at a joint meeting on the likely outcome if they went to court, followed up later in writing.

In money cases, the couple are assisted by our in-house team to compile and exchange their financial disclosure (essentially given on an ‘open Basis’ aside from parts 3 and 4 of the Form E which are privileged due to the subjective nature of income needs etc). As part of this, there may be one or more ‘Disclosure Sessions’ with their appointed barrister aimed at bottoming out the issues, including the instruction of joint experts. Then, when an asset schedule is agreed upon, the barrister advises on a likely outcome on a privileged basis, followed up in writing.

Q2: How does it differ from mediation?

A question we get asked a lot! In some ways, it might be considered the opposite of mediation because The Divorce Surgery is not a forum for negotiating between former partners but instead seeks to give an ‘answer’. Once that is done, couples leave our process – returning to their individually instructed solicitors if they have them, or perhaps to mediation – to negotiate a settlement. In our experience, separating couples have a huge appetite to know ‘what’s fair,’ which is the gap we have tried to fill.

Q3: How does it differ from private FDRs?

From the lawyers’ point of view, the output of The Divorce Surgery’s process and of a private FDR look similar – a non-binding, privileged indication of what a judge would do. But from the separating couple’s point of view, the experience looks and feels very different indeed. A private FDR is a welcome practical innovation but grafted onto what remains an adversarial process: opposing lawyers are likely to have been involved throughout the financial disclosure process, culminating in a robust exchange of submissions at a hearing.

That all takes a toll. By contrast, there are no adversarial features of The Divorce Surgery’s process at all. Couples are assisted in working on their disclosure together until they can agree on an asset schedule. All communications are copied to each other, ensuring total transparency. There are no requirements for either to set out a ‘position’ (though they may do so if they wish), and there are no competing submissions as at a ‘hearing’.

So essentially, the destination might be the same, but the route is very different.

Q4: Do you charge a fixed or hourly fee, and how do you determine the cost?

We only ever quote a fixed fee once we have ascertained the likely issues at the initial screening sessions. With joint advice, it’s much easier to ‘take a view’ about likely cost than it would be in a traditional process, largely because you are not dependent on the cooperation of ‘the other side’ for the smooth running of the case. And there’s no party/party correspondence.

How far does your network of barristers extend geographically, and how do you choose the barristers you use?

We’re set up to use barristers from across England & Wales to meet the needs of local couples. We have a panel of barristers from which we’ll suggest a shortlist of 3 or 4 names, usually of varying seniority and experience to suit budgets. The couple then makes the final choice. Having more than 40 years’ practice at the Family Bar between us tend to have a pretty good idea of which barristers will be best suited to advising in a joint setting.

Q5: Is your service focused on financial remedy cases, or do you deal with other issues, for example, child arrangements and TLATA?

Financial remedy Schedule 1 cases and child arrangements cases with no safeguarding issues. We don’t do TLATA cases.

Q6: Do you have a “typical” client, and if so, describe them?

Couples seek joint advice for all sorts of reasons such as;

  • They think it’s the natural thing to do when they separate.
  • They are terrified about what the process of obtaining independent legal advice might do to their relationship.
  • They are cost-conscious.
  • Privacy is important to them.
  • They want to move quickly.
  • They are already in court proceedings but want to get out.

This is a long-winded way of saying no; we don’t have a typical client. From our experience, the perceived benefits of joint advice seem to be universally understood across the wealth spectrum, from ‘big money’ to ‘modest needs’.

Q7: Do you feel hopeful that the amendments to the Family Proceedings Rules due to come into force in April will keep divorcing couples out of court; do you think they will be enforced?

As well as the new power judges will have to require parties to file open correspondence about their views on using NCDR (itself to be more widely defined than previously), an unreasonable failure to attend at an MIAM or NCDR will now be a specific reason to depart from the usual ‘no order as to costs’ regime. Some are describing this as a profound cultural shift and, taken together with the recent Court of Appeal decision in Churchill v Merthyr Tydfil (clarifying the court’s powers to mandate NCDR where appropriate), it certainly feels like an idea whose time has come. Much may depend on judges’ willingness to make cost orders for non-compliance. However, it is already clear that family lawyers are under an immediately enhanced duty to ensure clients are properly advised from the outset as to their out-of-court options – and of the new potential dangers of racing off to court notwithstanding.

Q8: How can we contact you to find out further information?

Just email the team on [email protected]  and we’ll work out how best to help you from there.


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