Wow,
February has totally past me by I’m afraid – hence the lack of any blog posts –
apologies.
Recently, I
have been amazed about the lack of understanding that there is generally by the
public about the forthcoming cuts to legal aid and what that will mean for
couples separating after 1st April.
I am often
asked by friends, family and professional contacts “how work is going” and I
have spoken with people recently about the challenges that family law as a
whole will face in the coming months/years.
More often
than not, people are surprised to hear that from April there will no longer be
legal aid available for family law matters, save where there has been Domestic
Violence – subject to the client being able to provide the necessary evidence
of that – or for Care proceedings.
This was hit
upon in the press when it was initially proposed but seems to have been lost
amongst other news and has not been highlighted for some time now.
Essentially
it means that the vast majority of separating and divorcing couples will no
longer be able to access legal aid to fund their matters. It is estimated that this will be about 85% of
those cases currently benefitting from legal aid.
It will mean
that for couples facing separation or Divorce where there has been no Domestic
Violence that they face some stark decisions about how to progress with their
Divorce or Separation.
These may be
couples with many assets, no assets but a lot of debt, couples facing disputes
over the arrangements for their children or any other situation in between.
To represent
yourself, perhaps especially in cases concerning arrangements for the children
but equally in cases involving the division of marital assets, is stressful and
frightening. Whilst a Judge will be available to manage the Court process and
explain some of the procedure to couples once proceedings have started it is
not the Court’s job to present any one party’s case or advise about the merits
of their arguments. Outside of the Court process people may feel entirely alone
and unsupported.
In the event
that one party has resources to fund legal representation and the other does
not, it can leave an imbalance in power in terms of negotiations and is likely
to see many more cases progressing to Court proceedings and thereafter to
contested final hearings, as a result of negotiations being ineffective.
The Family
Courts have principles and checklists to follow both in terms of cases
involving children and those concerning the division of marital assets. Add to
that the volume of case law, some of which binds and some which informs the
Court’s decisions, and it is easy to see that the self-representing litigant
may come unstuck.
So…what are
the other options:
1. Research
There are a
number of online resources available now that will explain the process of
Divorce and the issues that you will need to consider on Separation. You may
undertake some research and go it alone.
Consider – a lot of these resources provide
only brief information about the paper process of Divorce and fail to fully
explain important issues around finances or child arrangements.
Be wary of
advice from friends or people down the pub – they may be well-meaning but
frequently have their own perceptions or experiences colouring their view.
2. Mediation
To be
invested in heavily by the government over the coming years, Family Mediation
is a process whereby couples attend joint sessions with an independent Mediator
to discuss the various issues faced on separation – try to resolve their
financial affairs and try to agree arrangements for the children
Legal aid
remains available for Family Mediation if you pass the financial assessment.
You may self-refer or be referred through a Solicitor.
Consider – if you are not eligible for legal
aid then you will have to pay for each session of Mediation, although this is
often more cost effective than full blown negotiations through Solicitors and
can help narrow the issues.
Even if you
reach agreement through Mediation, you will need legal advice to ensure that
your agreement is legally binding – the Mediator will be able to point you in
the right direction and look out for Partnership Schemes between Solicitors and
Mediators that will fix fees for you – there is one in Worcester for example.
3. Middle ground
Some
Solicitors offer a middle ground option in terms of Divorce proceedings which
will see you doing some of the form filling and correspondence yourself whilst
you are guided through by the Solicitor dealing with your case.
This has the
advantages of you being certain of your next steps but controlling the costs.
Your Solicitor will also be able to advise you about any ancillary issues so
that you are clear on your option.
Consider – there will be a cost to this option but it
should be less than asking a Solicitor to fully manage your Divorce proceedings
– expect to pay about £350-£400 + VAT and Court fees of £385.
4. Free initial consultations
Useful and
offered by most Solicitors now, this initial form of consultation should allow
you to gain some information about procedure and the important issues in your
particular case. It is more tailored to you then generic information that you
may find online and you can access it without obligation
Consider - it may leave you informed but more
concerned about representing yourself going forward. Frequently people who
attend to see me for an initial consultation feel clearer on the issues and
their options but feeling that they will need support and guidance going
forward. That is not really a bad thing, better to be informed early on.
5. Instruct a Solicitor
The plus
side to this of course is that you will have a legal professional guiding you
through the minefield that can be Divorce, someone to support you and protect
your best interests and someone to advise you about which of your arguments are
strongest and which are perhaps fuelled by your emotions.
You may wish
to consider instructing a Collaborative Solicitor, and follow the Collaborative
law process.
Consider – there is clearly a cost to
instructing a Solicitor but you should be provided with detailed cost estimates
at the outset and updated about any costs throughout.
Several
Solicitors now offer fixed fee packages or banded costs – so that you know what
your costs will be at each stage of the process. You may also be able to agree
a capped fee with your Solicitor at the outset.
There may be
sources of funding open to you and there are a couple of organisations that
offer loans to cover the cost of financial negotiations and proceedings on
Divorce. Be sure to take financial advice and be clear on the terms of any
loan.
Whichever
option is chosen, Divorce is a difficult and stressful time for all involved,
if possible choose an option that will help you minimise the strain.
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