Funding family law cases after Legal Aid

As the dust settles following the end of public funding (Legal Aid) for the majority of people involved in family law cases, I am very interested to know what the actual impact on the ground will be.

The Legal Aid, Sentencing and Punishment of Offenders Act (LASPO) came into force on 1 April 2013 and means that Legal Aid is no longer available for individuals involved in family law cases where there is a divorce or financial proceedings or where it is necessary to deal with the living arrangements of children,  unless there is proven elements of domestic violence.

Some commentators expect the main impact of the withdrawal of Legal Aid will be a reduction in the number of family law disputes being dealt with by the courts. The rationale of this view is that people will be more inclined to resolve matters between themselves outside the court room as a result of not being able to fund the cost of having legal representation.

The other view is that the volume of court cases will not change but instead there will be a dramatic rise in the number of people who decide to represent themselves within the proceedings rather than incurring the cost of a solicitor.

The Bar Council – the ‘watchdog’ for barristers in this country – clearly feel that the latter is more likely and it has published “A guide to representing yourself at Court”. This DIY manual for legal proceedings offers advice to those considering conducting their own litigation which ranges from offering tips on what to wear at court and what speed to talk at (half your normal speed is recommended) to providing quite detailed legal guidance about the principles and application of section 25 of the Matrimonial Causes Act and the technicalities of Trusts law.

The Bar Council guide also gives advice on advocacy skills by explaining how to conduct cross examination by asking ‘closed questions’ as well as tips in presenting opening and closing submissions.

I do question whether there is any realism behind the publication. Being involved in family law proceedings, whether dealing with a divorce or financial settlement or whether sorting out living arrangements for children, can be incredibly stressful for a lay person even when they have experienced legal advisers assisting them. For an individual to try and conduct their own family law case without the benefit of legal advice would be all the more daunting a prospect.

Those who will no longer benefit from Legal Aid will have difficult decisions to make, namely whether to attempt to resolve matters without the need for court proceedings and if court is unavoidable, whether to pay for legal representation or have a go themselves. I fully accept that for some, paying for a lawyer is not an option.

The impact of LASPO may not necessarily be all bad news.

The act does offer some encouragement to the financially weaker spouse in divorce and financial remedy proceedings by making some amendments to the main divorce statute, the Matrimonial Causes Act 1973.   The amendments make provision for a Legal Services Order.

Such orders will give the court the power to order provision towards the applicant’s legal costs. This is not a new concept as case law had previously enabled an applicant in maintenance pending suit proceedings to seek an element in the award for legal fees known as a ‘cost allowance’. The main difference is that the legal services order will allow the court to order a lump sum payment which can be ordered to be financed by the sale of property or other assets.

Only time will tell how useful to a financially disadvantaged spouse the legal services orders will be but they are certainly something to be mindful of.

Maguire Family Law is a specialist firm of Family Law and Divorce Law solicitors based in Wilmslow, Cheshire. We offer legal advice to parties going through a divorce including the financial issues which flow from this and children matters including child maintenance.

We can also advise on Schedule1 Children Act 1989 applications.

We advise clients in the Wilmslow area and also to the surrounding areas of Alderley Edge, Bramhall, Hale, Altrincham, Manchester and the North West. We are also able to act for clients nationally and internationally subject to the jurisdiction of England and Wales. For advice please contact James Maguire by telephone +44 (0) 1625 529456 or by email james.maguire@family-law.