Short answer
Generally, no. In South Africa, a family lawyer may not act for both spouses in a dispute because it creates a conflict of interest. There is a narrow exception: a lawyer may act as a neutral scribe to record a settlement that the parties have already reached (or act as a mediator, who is neutral and not a lawyer for either side). Even then, the parties must be advised of their right to independent legal advice, and any arrangement affecting children must meet the best-interests standard.
Why dual representation is usually prohibited
- Duty of loyalty & confidentiality. A lawyer owes each client undivided loyalty and must protect their confidences. Acting for both spouses in a divorce or parenting dispute makes those duties impossible to discharge. The Legal Practice Council (LPC) Code of Conduct requires practitioners to avoid situations where a client’s interests conflict with those of another client and to withdraw if such a conflict arises.
- Built-in adversity in family cases. Even amicable separations involve decisions on property, maintenance, and parenting-areas where spouses’ interests can diverge quickly, turning “joint” advice into advice against one of them. The Code expressly warns about conflicts when acting for two or more clients in the same matter.
The narrow, ethical exception: neutral drafting of a settlement
The LPC Code allows a practitioner, as a limited exception, to act for both adversaries solely to draw up a settlement agreement capturing terms already agreed-not to advise both on what is best for them. In doing so, the practitioner must (i) advise both parties of their right to obtain independent legal advice and (ii) in matrimonial or parenting matters, take active steps to ensure the settlement is equitable and in the best interests of the children. Practically, that lawyer represents neither party as an advocate; they are a neutral scrivener.
Tip for firms: If you assist both spouses to record a deal, state in writing that you are not giving legal advice to either party and that each has been urged to seek independent advice.
Mediation vs. legal representation
- Mediation is different from representation. Under Rule 41A of the Uniform Rules of Court, parties must consider mediation at the start of new High Court actions/applications. A mediator is impartial and does not represent either party or give them partisan advice.
- Post-mediation conflicts. South African mediator codes (e.g., DiSAC) restrict a mediator from later advising or representing either party for a period (commonly 12 months) after a mediation, underscoring the neutrality required of the mediator role.
Children change the ethics calculus
Any agreement affecting children must satisfy the best interests of the child standard in the Children’s Act 38 of 2005. Parents are encouraged (and in some scenarios required) to develop parenting plans, often with assistance from a Family Advocate, social worker, psychologist, or a suitably qualified mediator. A lawyer who merely records a parenting plan must still ensure the process recognizes these statutory safeguards and encourage independent advice.
When dual representation is not appropriate (and you should decline)
- Any hint of domestic violence, coercive control, or material power imbalance.
- Live disputes about property values, maintenance, or pensions.
- Situations where one spouse seeks strategic advice or negotiation leverage against the other.
- If confidential information from one spouse could prejudice the other. In such a case, the Code requires withdrawal from one or all clients.
Ethical pathways your firm can offer instead
- Separate representation (recommended). Each spouse retains their own lawyer. You can still run a cooperative or collaborative process aimed at settlement.
- Mediation by a neutral (lawyer-mediator or non-lawyer mediator). Make it clear the mediator does not represent either party. If mediation fails, the mediator should not pivot to represent one side in the same dispute.
- Neutral drafting only. Where terms are already agreed, act as a scribe to capture the deal and file the necessary papers, while urging independent advice-especially for pension interests, tax, and long-tail risks.
- Unbundled/limited-scope services. Each spouse gets separate one-off advice sessions with different lawyers at your firm (subject to internal conflict checks), while a neutral drafts the paperwork.