Divorce can be a daunting prospect, especially if there are issues regarding finances, property, and arrangements for children to sort out. Naturally, most people faced with the prospect will want the assistance of a family law solicitor, to advise them and guide them through the process.
But what if they can’t afford a solicitor? Can they get legal aid to help them with the solicitor’s fees?
Until 2013 the answer to the question was simple: yes, you could get legal aid for divorce (and everything else connected to it), subject to your means.
Sadly, all that changed in April that year, when the government removed most private law family matters (i.e. matters not involving social services) from the scope of legal aid. As a result, the number of people accessing family legal aid was reduced by about 80 per cent.
The other effect of the change was that many family law solicitors gave up doing legal aid work, making it more difficult for people to find a legal aid lawyer, even for those few matters still covered by legal aid.
So what matters are still covered?
There are only really two main areas where legal aid is still available that are likely to be relevant to anyone going through divorce: in connection with mediation, and where there has been domestic abuse. (Legal aid may also be available in cases of child abduction, if your human rights are at risk, or if you’re at risk of homelessness.)
If you have issues regarding finances, property, and arrangements for children to sort out then you and your spouse may choose to go to family mediation, whereby a trained mediator will help you try to resolve matters by agreement.
Indeed, if you need to ask the court to sort these things out you will usually first have to attend a Mediation Information & Assessment Meeting (often referred to as a ‘MIAM’), at which your case will be assessed for its suitability for mediation.
But mediation isn’t free: the mediator will charge a fee for their services, which is usually shared between the parties.
When the government cut legal aid in 2013 it hoped that many of those people who could no longer get legal aid would take their cases to mediation, rather than go through the courts. Accordingly, the government decided that legal aid should remain available for mediation.
Legal aid for family mediation is means-tested. It is only available to those on a low income, or who are not working.
If you are eligible, legal aid will cover all of the costs of mediation, including all sessions with the mediator, the drawing up of an agreement by the mediator, and (if required) the cost of having a solicitor turn the agreement into a legally binding court order.
You may also be entitled to legal aid if you or your children have been the victim of domestic abuse.
Domestic abuse is defined to include physical or sexual abuse, violent or threatening behaviour, controlling or coercive behaviour, economic abuse (i.e. behaviour that has a substantial adverse effect on a person’s ability to acquire, use, or maintain money or other property, or to obtain goods or services), and psychological, emotional or other abuse.
If you wish to apply to a court for a non-molestation or occupation order to protect yourself from domestic abuse then legal aid is available, subject to means.
And legal aid may also be available (again, subject to means) to cover other matters such as sorting out finances and arrangements for children, if you can provide specified evidence that you have been the victim of domestic abuse, for example evidence that the other party has been arrested in relation to a domestic violence offence, or a letter from your GP stating that they have examined you and found injuries consistent with you being a victim of domestic violence.
Discover more about our legal aid service. Alternatively, find out more about our family mediation services and information in relation to how our domestic abuse solicitors can support you.
Ian Walker Family Law & Mediation Solicitors are award-winning family solicitors and are recognised as one of the leading family law firms in the South West of England with services covering family law & mediation, divorce, child law, and arbitration. For expert advice, please contact the team.
How successful is family mediation?
It is impossible to know for Non-Legally Aided Mediation. There are no central and independently audited statistics.
There are statistics for Legally Aided Mediation though.
The outcomes of legally aided mediations are audited by the Legal Aid Agency. If success is over claimed, the Legal Aid Agency will disallow the success fee that is otherwise paid. If there was a pattern for this happening – then there would be sanctions under the terms of the Legal Aid Contract.
We can therefore say that the Legal Aid Agency statistics are reasonably reliable.
The latest round of statistics have recently been published
Here is a table:
Family mediation can be used to resolve issues to do with children or property and finance following divorce or separation, and the ‘all issues’ category describes mediations which deal with both areas.
The children category consistently accounts for the majority of starts, comprising 64% of all mediation starts in the last year (this information is taken from the more detailed data published alongside this bulletin).
Mediations can either break down or result in an agreement.
Like other areas of mediation, agreements fell following LASPO. They have since stabilised at just over half of pre-LASPO levels (see figure 16).
Mediations in the ‘all issues’ category can reach full agreement, where agreement is reached on all issues, or partial agreement, wherein an agreement has been reached on either children or property and finance, but not both. As such, successful agreements include both partial agreements and full agreements.
Over the last year 62% of all mediation outcomes involved successful agreements. The rate of success varied between different categories of mediation, with the highest proportion of agreements (63%) in the children category (this information is taken from the more detailed data published alongside this bulletin).
There is a lot less Legally Aided Mediation taking place than before the legal aid reforms which were supposed to promote mediation: 15000 ish down to around 8000 ish per year (the 2016-2017 were down so far from 2015-2016)
A greater proportion of mediation is about children issues and this is more successful than financial mediation
Success within these figures also includes partially successful. This is most likely to be where children issues have been resolved and financial issues have not.
If around 40% of mediation is unsuccessful – the failure rate for financial mediation will be higher – this is because success includes partial success. What this is most likely to mean is a failure to resolve financial issues but that there has been success in resolving child arrangements. As in my experience many couples tend to focus on one area of dispute, resolving children issues when finances are in dispute tends to be more straightforward.
40% failure rate means that nothing has been resolved at all.
The proportion of successful mediation is no better now than before the legal aid changes – why is this? 64% successful in 2006/7, 68% success in 2007/8, 66% success in 2012/13. Arguably the previous legal aid rules pulled even more contact cases into mediation.
There are more detailed statistics published
These charts are for the most recent full calendar year.
The overall success rate in finance only mediation is only 54%
When both finances and children issues are considered in mediation financial issues are resolved in only 51% of cases. Children issues are resolved in 60% of those cases.
Is a 54% -ish success rate for financial mediation acceptable? You can see why people are wary – particularly when money is tight – but Court is rarely the answer. We think that our combination of mediation with arbitration provides the best option.
If you want to see the legal aid data look here https://www.gov.uk/government/statistics/legal-aid-statistics-october-to-december-2016
No – remember overall 62% of cases were resolved. Resolution would have saved clients a lot of cost and should also have preserved or improved family relationships.
But – prospective clients need to be realistic – mediation is no magic wand.
For mediation to work, clients need to fully commit to the process and deliver on commitments made during the process. They must be prepared to have some give and take.
Perhaps also clients need to be more selective in their choice of mediator?
What are the mediators skills and background. Personally I always refer my clients to specific experienced mediators who are either practicing solicitors or who are non-practicing solicitors. But – I think my model of linking my mediation practice to a panel of arbitrators who are known to me is the way to go (although unfortunately legal aid is not available for arbitration – although if the matters still unresolved at the end of a mediation are reasonably narrow then a paper based arbitration can be inexpensive and certainly cheaper than the alternative)
I have been a Family Mediator since 1996 and am a supervisor of other mediators. I am accredited by the Family Mediation Council and the Law Society. I am also a Civil/Commercial Mediator and member of the Devon and Somerset Mediation Panel. I am a Family Law Arbitrator (Children Scheme) via IFLA and I am a practicing Solicitor with Accreditations via the Law Society and Resolution.
In other words I am quadruple qualified.
This means I am aware of the pros and cons of all relevant practice models and am well placed to comment.
I have been undertaking legally aided mediation for nearly 20 years. I have my own Solicitors practice based in Honiton but covering Taunton and Exeter. Our Mediation with Arbitration scheme is portable to anywhere within a reasonable travel distance…
But, all this means that I understand how the different styles of practice work – and don’t work – and perhaps also how they can best work together…
As an experienced family law solicitor I know that Christmas is not a happy time that everyone. Indeed it can be very lonely and depressing. Some parents are for various reasons unable to spend time with their children on the main days of the Christmas holiday or even at all.
In the run-up to Christmas we deal with a surge in cases where separated parents are in dispute over the arrangements through which children will spend time with each parent over the Christmas holiday. Here are some hopefully helpful tips.
Rights of Women is a women’s voluntary organisation committed to informing, educating and empowering women concerning their legal rights.
The organisation is based in London and was founded in 1975. They seek to influence policy by undertaking original research, preparing responses to policy documents from Government and other sources. Rights of Women organise conferences on women’s rights, and hold public meetings. They want women’s voices heard at every stage of public policy formulation.
In addition Rights of Women offer free confidential legal advice to women on through their own advice line. Their website contains a lot of useful information and a link can be found here; Link to Rights of Women Website
Rights of Women were recently successful in being granted permission to challenge the evidence requirements often referred to as the ‘domestic violence gateway’ to legal aid in many private family law cases.
The Law Society has supported their challenge (brought by the Public Law Project on their behalf) over the lawfulness of Government changes to legal aid which are preventing victims of domestic abuse from getting legal aid for family cases, even when it is clear there has been violence, or there is an ongoing risk of violence. Rights of Women argue that this is not what parliament intended.
A full hearing is expected before the end of the year
What follows is a short piece which formed the basis of our Advert in East Devon’s Midweek Herald Newspaper in January 2014.
We regularly advertise in the Midweek Herald because it is a free newspaper that is delivered to homes in Honiton, Seaton, Axminster, Colyton, Beer and Ottery St Mary. It can also be found in Sidmouth. Our main office is in Honiton, although we are also able to see clients by appointment at our branch offices in Exeter and Taunton, so the Midweek Herald is a natural place to advertise. As an East Devon resident, Ian has been reading the Midweek Herald for quite a number of years.
Ian Walker has been a specialist Family Law Solicitor since 1992 and a Family Mediator since 1996. Ian has worked for Solicitors Practices recognised as amongst the best in the South West. Ian has a long commitment to good Practice and has served as a Member of the Family Law Committee of the Law Society, which promotes good practice and Law Reform. (more…)