Legal aid changes from April 2013 affecting families going through divorce
Changes to legal aid funding from April 2013 affecting many lower income families going through divorce or separation.
Pre 1 st April 2013, people on low incomes were eligible for legal aid to cover all aspects of family disputes, including divorce, children (such as contact and residence disputes), financial matters, care proceedings and domestic abuse. Under the new rules, legal aid will be limited, to low income applicants (on benefits or means tested), but only if their situation falls into one of these categories:
Children, financial matters and applications for injuctions where the applicant is, or has been, the victim of domestic violence. These involve cases where one party has hurt, abused or threatened the divorce applicant or the applicant’s child, and even where the abuse does not form a relevant part of the case before the courts.
Domestic violence is defined as "any incident of threatening behaviour, violence or abuse (psychological, physical, sexual, financial or emotional) between adults who are or have been intimate partners or family members, regardless of gender or sexuality". As well as the physical aspects the definition includes aspects of control e.g. preventing access to money or family/friend support networks and also verbal abuse such as name calling.
Evidence of this abuse will need to be provided, and can be in the form of a conviction or caution, injuctive order or undertaking, a finding of fact made by the court, letter confirming violence from the Local Authority, health care professionals, domestic violence refuge or MARAC.
If the local authority has child protection concerns, parents, children and other interested adults will continue to be able to access legal aid.
If there is a history of, or risk of, child abduction outside the UK, or a child has been unlawfully removed within the UK, legal aid may be available.
Anyone threatened or forced to marry against their will can apply for a Forced Marriage Protection Order.
Save in child protection and child abduction cases, legal aid will not be available for individuals responding to a divorce application, unless the respondent is also a victim of domestic abuse.
According to figures from Citizens Advice, these changes mean that of the 250,000 cases of divorce and family breakdown that historically received legal aid each year, only 40,000 cases will be eligible in future.
Dominique Gillan, a Barrister at Guildford Chambers said, “Unfortunately Legal Aid is no longer an option for most divorcing couples on low incomes. However, there are alternatives that may help families come to arrangements over finances or children.”
The first point of call is to try and resolve the issues amicably. If discussions prove hard, help can be provided through such relationship agencies as Relate or with the assistance of a qualified mediator or collaborative lawyer , experienced in helping people with family issues.
If mediation is unsuccessful and matters need to progress to the family Courts, it may be possible to obtain free representation via organisations such as the Bar Pro Bono Unit or the Free Representation Unit.
There is also a scheme called ‘Public Access’ where you can appoint a Barrister directly to represent you, without having to use a solicitor. Many barristers who do public access work offer reduced fee schemes for those on low incomes. This scheme has the further advantage of permitting the client to call on legal help only as and when this is required, thus enabling the client to keep a very close eye on the purse.
It is also possible for people to represent themselves in Court as a “litigant in person”, but whilst this might appear to be a way to save money, you should be careful as there are numerous pitfalls to catch out the uninitiated . Knowledge of what evidence and how to obtain this, as well as a working knowledge of the relevant laws and the courts’ interpretation of these is key. There are some charities such as the Personal Support Unit who provide practical and emotional support to people who are representing themselves in court, although they do not offer legal advice.
Dominique Gillan, Barrister, Guildford Chambers
Contact Legal Services Commission for details and assistance on
0845 345 4 345. It is generally for low waged or people on benefits and it is ALSO based on the merits of the case, that means your chance of being successful against your spouse if he/she has the means to pay your claim. It may then have to be repaid plus interest. Contact the number above for full details.
Please see this legal aid online calulator as a guide only
This is how the old scheme worked:
What is legal aid?
Put simply, legal aid is when the government pays your legal costs or part of them when you are unable to afford them subject to proof and the merit of your case. Sometimes you may have to pay a contribution and you have to repay the costs on receipt of money or property from a settlement.
The legal aid scheme
The Legal Services Commission (LSC) directly funds legal services for eligible clients. Since April 2nd 2001, only organisations with a contract with the LSC have been able to provide advice or representation funded by the LSC. In family law, only specialist firms are funded to do the work.
How do I qualify?
Legal aid is a complex system which often changes but basically if you are receiving income support, income based jobseeker's allowance or guarantee state pension credit, then you will be eligible with regard to capital and income limits.
If you are not receiving one of these benefits, you must be able to show that your capital and your income are within current financial limits. Please note that if you are living with a partner (not your spouse), his or her income and capital are also taken into account.
Are there different types of legal aid?
Yes. These are known as:
This provides initial advice and assistance. It was previously known as the 'green form' scheme.
Help at court
This allows for a solicitor or adviser to speak on your behalf at certain court hearings, without formally acting for you in the whole proceedings. Legal help and Help at court enable people of moderate means to get help from a solicitor or adviser for as long as the solicitor or adviser agrees that there is sufficient benefit in continuing with the case or unmtil the case is funded in another way.
You must apply asap for thee two types of assistance as they cannot be applied for retrospectively. This means that unless there is a proven emergency, there will a waiting period for legal aid to be granted.
If you need extra help, your solicitor or adviser may advise you to apply for a higher level of funding such as General family help or Full representation as detailed below.
If people are eligible for Legal help or Help at court they should not be asked a fee.
This covers mediation for a family dispute. This means trying to reach an agreed settlement with the help of an independent mediator. (See our mediation section for further details).
Help with mediation provides legal advice and assistance if you are attending family mediation as legal advice is always required during the mediation process.
General family help
This includes the services under Legal help to resolve a family dispute through negotiating or otherwise. But it also includes issuing proceedings and representation where necessary to secure the early resolution of a family dispute. it also includes obtaining a consent order following an agreement of matters which were in dispute. It does not cover representation at a contested final hearing.
This means that you can be represented at court if you are taking or defending court proceedings. There are two types:
Investigative help - funding is limited to the investigation of the strength of a claim.
Full representation - funding is provided to represent you in legal proceedings.
Both these types of help could be granted on an emergency basis under certain criteria.
Low cost or free interviews
In addition to the above levels of service, some solicitors are prepared to give a free or low cost initial interview whether or not you qualify for legal aid. The Divorce Aid Directory gives details of our recommended firms and details whether they provide legal aid or special interviews. The Team has however spoken to many people who try to visit several firms offering this service and never really take the advice of one particular firm. This of course does not lead anywhere and can waste valuable time.
Who decides on eligibility?
It is either a solicitor or adviser who decides on this and you will be told at once when you are assessed.
Online calculator guide
If you are on a low income and/or benefits other than the ones listed at the top of this page and think that you may be unable to pay legal fees, it is best to find out straight away if you could be eligible. For more information about legal aid, check out the Community Legal Advice Legal Aid Calculator
Cymraeg But the merits of your case will need to be examined as well as an investigation of your finances.
You will be asked a series of questions about your legal problem and financial situation. This shows you how to work out your disposable capital. This will give you a guide only and it will not mean that you are definitely eligible.
For reasons of data protection, none of the information entered into the calculator is saved, so it is completely confidential and anonymous. You can print out the results at the end for your own records. To get the most accurate results you may need to have certain personal documents to hand. You can then search for a solicitor in our section Find a solicitor.
Sometimes this can be a lengthy quest. Firms which have a legal aid franchise sometimes fill their quotas. You could ask for their recommendation of a suitable firm in the local area. You may have to travel a bit further to access it.
Extra costs you may have to pay and the statutory charge
The money or property you get with the help of public funding will be used first to repay your legal costs to the Legal Services Commission and you will receive anything left over. There are some exceptions and rules but these change from time to time. As always, be guided by your solicitor.
If the statutory charge has to be paid
Payment can be postponed if the charge relates to your home or the home of your dependants. The statutory charge can also be postponed where it is to be paid out of money which is to be used to buy a home for yourself or your dependants. Your solicitor will give you more information about the effects of the statutory charge before you decide to go ahead with your case.
A solicitor may need more than the two hours (three hours for divorce or separation cases) limit set under the legal help scheme to finish the work, and in these cases, may be able to extend the time. Also, there is a financial limit to the work that the solicitor or organisation can do. If the work would cost more than this limit, the solicitor or organisation will need the permission of the Legal Services Commission (LSC) to extend the limit. The solicitor or organisation must not carry out further work unless the extension has been granted. If the extension is not agreed, you will have to pay the full amount for the work to be completed.
How to apply
If you qualify for the legal help scheme, you will need to see a solicitor, or organisation with a contract to provide legal help under the legal help scheme. The solicitor will ask you to fill in an application form at the start of the interview. The solicitor will then be able to decide whether you qualify. You will be told straight away and no reason has to be given if you are refused.
National Asylum Support Service
If you receive benefits from the National Asylum Support Service (NASS), special rules may apply. To find out if these rules apply to you, you should contact a legal adviser.
You must tell your solicitor or adviser if you have had Legal help or Legal help at court about the same problem paid for by the Legal Services Commission or by the previously named Legal Aid Board. You may be able to receive Further help with funding but you have to give full details.
Who pays the solicitor?
The LSC regional office will pay your solicitor's bill, less any contribution you may have to pay.
Is there a law about legal aid?
Yes, the provision of legal aid is contained in the Access to Justice Act 1999 and the Funding code, guidance, regulations, directions and orders made under that Act.
Children can be eligible for Legal help and help at court. Most cases concern a child below the age of 16 who needs the help of a solicitor. A parent or guardian should apply on the child's behalf. Sometimes a solicitor can advise a child directly. Please find more details in our Teenager section. The parents' or the guardians' means will be taken into account in assessing eligibility unless there is a conflict between the child and parent.
Public legal funding in Scotland and Northern Ireland
There are separate schemes in Scotland and Northern Ireland. Please refer to our separate sections for these areas.