The benefit of legal aid for early advice

Family|Family Law|Industry News|December 10th 2018

The Government is presently putting the finishing touches to its review of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (‘LASPO’) which, amongst other things, abolished legal aid for most private law family matters. The review will consider the problems caused by LASPO, and how they may be resolved, or lessened. The clear consensus is that there will be no reinstatement of full legal aid for all the matters it covered prior to LASPO, but there have been calls from several quarters for the re-introduction of legal aid for early advice.

The idea is simple: if those with a legal problem obtain professional legal advice early then they are far more likely to resolve the problem sooner, thus saving the taxpayer the expense of contested court proceedings.

I thought it might be useful to see how exactly this might work in a family law context, by looking at three very typical scenarios.

In my first scenario a husband has been served with a divorce petition, alleging that he has behaved unreasonably. He cannot afford to see a solicitor. He is irate at the allegations against him, and is determined to show the world (i.e. his friends and family) that the real fault for the marriage breakdown lay with his wife. He therefore wishes to defend the divorce and cross-petition on the basis of his wife’s ‘unreasonable behaviour’. This, of course, could lead to disaster. As I mentioned here just last week, defending a divorce is a futile exercise that will achieve nothing but delay, further animosity and further expense. If this husband were to take early advice these things would be explained to him, and if he accepted the advice then disaster might be avoided, leaving him free to concentrate on resolving other issues (e.g. relating to arrangements for children) quickly and amicably.

My second scenario concerns a father of a seven year old boy. He separated from the boy’s mother three years ago. The boy has lived with the mother since the separation, and is well settled with her. The father, however, has now decided that his son should live with him. Unable to afford a solicitor, he proceeds with an application to the court for a child arrangements order that the boy live with him, oblivious of the fact that the circumstances of the case clearly indicate that the child’s welfare will be best served by him continuing to live with his mother. There is therefore little chance that the court will grant the application. The court suggests mediation, but the father refuses, saying that he ‘wants his day in court’. The case takes a year to come to its inevitable conclusion, causing unnecessary stress and animosity between the parents, which in turn damages the father’s relationship with his son. All of which could have been avoided if the father had taken early legal advice.

My last scenario concerns a wife who is divorcing her husband, who has gone to live with another woman. She is upset and aggrieved at what has happened, and feels that her husband should pay for it. She has nothing, but her husband has some modest assets. She can’t afford to see a solicitor, but she decides to take her husband ‘for every penny’, so she issues a financial remedies application. Of course, the fact that the husband has left the wife for another woman has no bearing upon the outcome of the financial remedies application, and the wife is ultimately disappointed, having expended a great deal of effort and stress upon contested proceedings (she may also have to contribute towards the husband’s costs, having refused his settlement proposals). Again, this could all have been avoided if she had been able to see a solicitor before rushing off to court.

It really is a ‘no-brainer’. Early advice can prevent unnecessary conflict, by explaining what the court is likely to do, and by reducing unrealistic expectations. A solicitor will also explain other methods of resolving the dispute, for example by going to mediation. Whether the cost of re-introducing legal aid for early advice will be offset by the saving in fewer contested court applications, I don’t know, but the cost of contested proceedings to the parties involved, and to their children, is something that cannot be quantified in monetary terms.

And these conclusions, of course, apply equally to anyone who can afford legal advice: you can ‘go it alone’ if you really want to, but it would still be extremely useful to take some professional advice before you do so.

Author: John Bolch

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

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