Family Law, Legal Aid and how the courts will approach your case

We are all familiar with the notion of Brexit and the after effects, arguments and concerns raised. However, notwithstanding the obvious issues dividing the nation, the matter of Brexit has also seemingly contributed to a dramatic increase in couples separating. Nigel Shepherd the chair of the family lawyer’s organisation Resolution suggested that the difficulty of reconciling opposing political views may be the final straw. A similar trend has been noted in the US during and since the Trump/Clinton presidential saga.

The impact of the recent and savage cuts to legal aid funding has been felt most notably in the Family Law Courts, particularly in relation to the issues surrounding the residence and contact arrangements for children.

The cuts were sold on the basis of a reduction in the use of court time and other recently made efficiencies. However, the empirical evidence tends to suggest that in actual fact, the exact opposite is now being experienced in the family courts. A number of high profile cases and the comments of certain senior judges have recently highlighted the delays and injustices caused by a lack of funding that would otherwise provide for the presence of lawyers who would normally be expected to deal far more effectively with the problems unrepresented court users can be faced with.

Legal aid in family cases is now more or less restricted to care proceedings and those involving allegations of domestic violence but in the case of the latter it is only available so far as it is needed to protect the victims of domestic violence, typically, but not exclusively female court users the problem being is that the person on the other side of such proceedings does not qualify for legal aid thus resulting in one party having to represent him/herself. This raises its own issues of fairness but also does nothing to help the efficiency of the overall system.

Victims of domestic violence can also qualify for legal aid for assistance in a wider range of matters such as divorce proceedings and child access matters and some issues relevant to the financial elements following a divorce. However, the criteria for obtaining legal aid in such these cases requires a strict evidential threshold being met and more often than not, through no fault of either party such evidence cannot be obtained thus denying the relevant party access to justice.

There has been much written about the difficulty of obtaining such evidence and the rejection of the evidence by the legal aid agency whose job it is to ultimately decide who gets legal aid and who does not!

There are now 3.3 million cohabiting couples in the UK and the figure is rising.

The demands of dealing with the fallout following a breakdown of a relationship and the resulting disputes over finances are on a par with those of a marriage breakdown and the number of resultant disputes has never been higher. At the moment the court process of dealing with disputes between non-married, co-habiting couples is complicated and is governed by the law of trusts and some relevant case-law handed down by the courts. The breakdown of marriages and divorce is dealt with primarily by statute, in particular, The Matrimonial Causes Act 1973 and some case-law too. Commonly, when considering the division of assets following divorce the starting point is equality i.e. 50/50 subject to a list of factors in s25 of the aforementioned Act.

There is no such equivalent guiding principle in relation to the financial position following the breakdown of cohabitant’s relationship. The only asset to which any legal principle apply is any property owned either by one party or jointly. The court has no jurisdiction in such cases to divide other assets/capital such as shares, investments, savings and pensions. On divorce however, the court will naturally consider the whole financial circumstance, thus all assets and capital will be under the courts scrutiny.

If the cohabitants have children under 18 then there is a possibility to apply to the Magistrate’s Court for a periodical payment order or lump sum for the party looking after the child. If the couple are childless then no such application can be made.

The Law Commission has recently recommended that that the law be reformed in order that cohabitants and divorcees be approached equally.

Finally, in the news recently has been the story of a Dutch entrepreneur Jim Halfens and his Divorce Hotel. The package offered is a weekend away with a difference. The parties are invited to stay at the hotel where they will finalise their divorce so that when they leave, subject to a judge endorsing their agreement to divorce, they leave as divorcees. During the stay they will attend meetings with lawyers and mediators and complete the necessary forms and documentation. Naturally, they will stay in separate rooms. The hotel has been aptly nicknamed “Heartbreak Hotel”

The author (Neil Grunfeld) is a specialist family Lawyer with Howards Solicitors 72-74 Wellington Road Stockport SK1 3SU and can be contacted on 0161 477 8558. He has been practising family law for 15 years and is a member of Resolution. An initial consultation can be arranged for a modest fee which will include a letter if necessary. Neil has been praised for his firm but friendly approach whilst making the interests of children, the subject of such cases a priority.