Yes – is the short answer. People often do this to save costs or because they cannot afford legal costs. Only 20% of our family cases actually progress to court. Despite the emotional and financial cost involved, if agreement cannot be reached, issuing family court proceeding is the only option.
The difficulty for someone acting for themselves is that they do not have someone to independently advise them. A concern I would have is that a litigant in person in a divorce might pursue a bad, if not, hopeless case; and in a family law situation this could have significant and negative consequences.
There can be three elements to a family law case;
A divorce itself is a relatively straightforward procedure but here I am talking about the more substantive issues relating to the finances and any child.
The relevance and complexity depends on the individual case. It can be very difficult to pursue the correct course of action without specialist legal advice.
Some questions to consider before taking legal action are:
– Stepping back as best you can, are my prospects for success good?
– Is it worth the time and potential divorce costs
– Even if I’m successful, does the other party have the means to pay
– Have I done everything to avoid divorce proceedings?
I have received court papers
If you have been issued with court documents you cannot ignore these and it is better to prepare so that you can handle the situation in the best possible way. There are different types of family court hearings and they can be called; a directions hearing, a dispute resolution appointment, a fact-finding etc
How to prepare for court
There will be certain documents and information relevant to your case and all of these should be prepared in advance in a bundle. The person responsible for this will be outlined in your court papers so make sure you read all of the information clearly. Bundles allow all parties to access the relevant information quickly and easily. The bundle contents should be agreed by all parties and supplied to the court 3 days in advance of the court date. You may be requested to provide a position statement but even if you are not this can be a useful document and should include the following:
- The date
- Case number
- Names of parties
- What has happened so far or since the last hearing
- Your concerns
- What you would like to achieve during the hearing for example; financial disclosure from the other side or permission to file further relevant information
You should then ensure that this is provided to the other party before the court hearing.
Practical arrangements on the day
The best advice is to ensure you attend the hearing as court will take a dim view of anyone who ignores legal proceedings. Treat this process as formal and prepare as best you can.
Since Covid-19 remote hearings are now more commonplace so make sure you have arranged to have any children cared for and that you have a quiet place with a good wifi connection and where you will not be disturbed. YOu are not permitted to have anyone present. Again, read all of the information carefully as different courts have varying procedures about how you will connect to a remote hearing.
If your hearing is in-person make sure you arrive at least one hour before so that you have time to announce your arrival to the court usher or participate in any discussion / negotiation with the other side before your hearing.
Can I bring a relative or friend to court?
You can bring support with you but they will not be permitted into the actual hearing. A McKenzie friend can be permitted into your hearing, with prior agreement from the court, but they will not be permitted to speak on your behalf. However it can be useful for someone to offer support in taking notes and providing you with prompts. Please also note that McKenzie Friends may not be legally qualified to offer advice.
During the hearing
Prepare notes and refer to them – it can be nerve wracking and therefore easy to forget your points.
Remain polite and courteous. You may feel provoked by things that are said but stay calm and know that you will be given your opportunity to speak. Refrain from interrupting.
What impact does being a litigant in person have on family proceedings?
- Sometimes, court processes have to be lengthened to take into account the fact that one party isn’t represented. Judges have to be cautious about proceeding where there is a suggestion that a litigant in person does not understand what is required of them. This could mean that an individual hearing lasts longer or that the court adjourns a case to allow for extra time or a ‘second chance’ if someone didn’t understand what they had to do.
- Issues may not remain resolved. Although you may devote time and effort to securing a final order for the children, in the first instance there is nothing to prevent your ex-partner referring the matter back to court in the future. Without them taking proper legal advice, you may find that further court proceedings are started for trivial and unnecessary reasons; and where both parties seeking the help of a solicitor or mediator may have resolved matters out of court.
- The key issues can be missed. The judge is not there to give legal advice. A judge will make orders based on the information and evidence before them. There may be a particular legal argument that would support your case, or a piece of expert evidence which could have been obtained which would have added weight to your case.
- If only one party is represented, their legal costs can potentially increase. For example, a solicitor cannot advise the unrepresented person, but sometimes they have to prompt the litigant in person to take the necessary steps i.e. to file paperwork by a particular date.
- You may accidentally breach a court order. If no one is there to explain the complex wording of a court order to you, key deadlines might be missed. This may negatively affect the court’s ability to deal with your case; and may potentially result in your case being dismissed.
It is possible, in order to save costs, to take legal advice to prepare for court and to attend by yourself. The sooner you take specialist advice the better the likely outcome for you. The process can be complex and this is our area of expertise. Call us for an informal chat to discuss your options and find out how we can help you prepare for your court hearing.