Going it alone.....the best option?

Thanks largely to the proposed Legal Aid, Sentencing and Punishment of Offenders Bill more and more people will find themselves having to consider self-representation in Divorce and Family Law matters.

The concept of DIY Divorce has been around, of course, for some time – with online providers offering clients the opportunity of dealing with the forms themselves and with the whole process at arm’s length – but this change in the legal landscape will mean that people who don’t particularly want to deal with matters themselves or who want to see a Solicitor face to face, may be forced to consider the DIY option.

The Divorce process, admittedly, is largely procedural and whilst there are a few potential pitfalls, the majority of the paperwork required by the Court has been simplified to allow parties to manage the process without the need for legal advice – this is the procedure that many online providers deal with.

Far more complex, however, is the process undertaken to deal with marital finances or in negotiating arrangements for children. The case law, arguments and Family Procedure Rules provide a formidable hurdle for those who are not aware.

Whilst perhaps those couples who have no marital assets and no children may find dealing with the Divorce procedure manageable (albeit that they may fall foul of not dealing with their financial claims and allowing them inadvertently to continue), I can’t help but wonder how those who need to negotiate financial settlement and child contact issues will cope.

There is, of course, Mediation – a really useful tool for those couples who are prepared to attend sessions together and discuss the issues to reach settlement. The government proposes to invest a significant sum of money in Mediation over the next 24 months but I remain concerned that, without independent legal advice, people will be left adrift, trying desperately to sort through their many emotional and financial issues without guidance as regards what issues they should be pursuing, which they should leave and what they can hope to achieve by way of settlement – Mediators are not there to advise either party.

If Mediation fails to produce an agreement, the self-represented parties will be faced with the prospect of Court proceedings, with all the additional procedure and rules that brings and the thought of addressing a judge directly and in such a way as their arguments are clear.

This may all seem a little convenient, “aren’t you just concerned that you’ll have less work” I hear you say. Actually, no, I’m more concerned about the impact that self-represented litigants will have on the Court and the knock on effect that this will have for all clients, represented or not, including mine.

It is of little surprise that cases involving self-represented litigants often take a significantly longer time being heard in Court, because the judge must rightly ensure that each party understands what is happening but also because self-represented litigants do not necessarily understand the more relevant aspects of their case. When it’s personal, issues that would have been dealt with quickly had the parties been represented, can become almost insurmountable.

The rise in self-represented litigants is likely to require the Court to set aside more time for hearings, to ensure that each matter is dealt with fully, which in turn will lead to delays in other cases being listed – including those where parties are represented.

In addition, for those cases where one party is represented but the other is not, there can be costs implications for the represented party as a result of their Solicitor necessarily having to draft documentation for the Court, spend time explaining matters to the self-represented party at Court in line with professional rules and, ordinarily, dealing with increased correspondence and time spent dealing with issues that perhaps are not fundamental to resolution of the case – I am generalising, I know of several self-represented litigants who cope very well.

So you see, my concern is not only for people who will have to face the unpalatable prospect of representing themselves in negotiating their financial future or arrangements for their children but also the likely effect that this will have on my own clients in terms of delay and costs.

I am almost bound to say that I would advise that in all but the simplest cases, legal advice is key but, in honesty, good legal advice can save parties significant costs, help focus the parties on the relevant issues and ultimately ensure a fair resolution with as little emotional cost to the client as possible.

It is undoubted that the legal market is changing and firms will have to change their long established ways of working to ensure that people receive the best advice in a manner affordable to them – forgetting for a second that we are running businesses; we did all train as lawyers to advise and help people through their difficulties – at least I did.

With this in mind, our Family Law team has developed a range of costs solutions for clients, from free initial appointments, monthly payment plans, fixed fee divorce packages and bespoke plans to allow clients to access the advice that they so need in a way that is at least manageable.

So….go it alone?