Just over a year ago, I decided to focus my attention—and thus my practice—primarily on matters involving personal and family law. Since then, I’ve been saying “no” more often when approached with cases from other areas of law, such as eviction of a tenant, a used car that broke down after 3,000 meters, or the classic neighborhood dispute. Saying no more often to cases that don’t make my heart beat faster has certainly paid off. My practice is now roughly 70 percent filled with divorce cases and all kinds of requests under Book 1 of the Civil Code.
Recently, I had a first consultation with Mr. Appel, who indicated that he wanted to divorce his spouse after more than fifteen years of marriage. He also mentioned that he and his wife were able to communicate very well, and that making arrangements regarding the settlement of their marriage seemed perfectly feasible. I asked him whether he knew that a divorce petition could be filed not only unilaterally but also jointly. The advantage of a joint petition is that it can save costs related to court bailiffs. If there are no minor children involved, the divorce decree can even be issued without the parties having to appear in court. Mr. Appel liked that idea, and a few weeks later he approached me again with the happy news that he and his soon-to-be ex-wife had reached good agreements after a few discussions. Despite the positive news, I, as Mr. Appel’s legal representative, had to reflect carefully.
In 2016, the District Court of The Hague dealt with a case involving the professional liability of a lawyer who had submitted a joint divorce petition. The lawyer was first approached by the wife to represent her interests in connection with the divorce settlement, and later a second meeting took place in the presence of both the husband and wife. After consultation, the financial and other consequences of the divorce were recorded in a final divorce agreement; the lawyer then submitted a joint divorce petition with ancillary provisions on their behalf, after which a divorce decree was issued. The husband later claimed that the lawyer had not exercised the care expected of him and had failed to properly advise and inform him. The lawyer argued that he had acted solely for the wife and had also informed the husband that he would not act as a joint lawyer.
Since the lawyer submitted a joint divorce petition partly on behalf of the husband, he acted on the husband’s instructions and also represented his interests, according to the court. While a lawyer is allowed to act for both parties in a joint divorce petition, the lawyer then bears a heavy duty of care toward both parties. The lawyer must inform both parties about their legal position and ensure that both parties actually agree to the arrangements set out between them and that they understand the content. This obligation exists even if the lawyer was not instructed to review the divorce agreement substantively.
If I were to file the divorce petition with the agreement on behalf of Mr. Appel and his wife, I would therefore have to provide substantive advice not only to Mr. Appel but also to his wife. I ultimately decided to refer this matter to a reliable and suitable colleague. This would have been different if Mr. Appel and his wife had attended the first consultation together. But in my view, I had already had too much contact with Mr. Appel about his marriage to provide his soon-to-be ex-wife with neutral and independent advice.
The option of a divorce by joint petition has existed for some time, alongside the possibility of filing a unilateral divorce petition. The unilateral procedure can also be used to achieve a divorce by mutual consent, in which case the petition is not contested. Unfortunately, even in joint divorce petitions, other disputes often remain after the “divorce hurdle” has been crossed. These may include legal battles over maintenance or the division of parenting and childcare responsibilities.
In joint petitions, the ongoing disruption is often introduced, and either spouse has the authority to unilaterally withdraw the petition before the decree. If the parties reach mutual agreements, the court can include them wholly or partially in its decision. Once a joint divorce petition is granted, appeal is no longer possible.
The joint divorce petition therefore has its pros and cons and is not suitable for everyone. The parties must be aligned on the settlement of their marriage, which, unfortunately, is only occasionally the case. If you and your partner would like more information about such a petition, you can of course always contact me. I would advise, however, that you come together for the consultation.