Using a solicitor in divorces or family cases can be expensive. More and more people will be tempted to represent themselves. They are what are known as litigants in person (or LiPs). When I began practising family law 20 years ago, it was rare to encounter a LiP. Most people used solicitors if they got divorced or found themselves in a dispute with their ex about money or children. People of limited means qualified for legal aid.
Things are very different now. It is very difficult to get legal aid, unless you are a victim of domestic abuse, forced marriage or female genital mutilation (although legal aid is still available to cover the cost of family mediation). I now frequently act in cases where the other side is unrepresented. I suspect that there are LiPs in may be a third of the cases that I handle nowadays.
It is very easy for LiPs to make mistakes in their cases. These are my Top 10 mistakes made by litigants in Person.
1. Not using a solicitor
Not using a solicitor is the very essence of being a LiP. Of course you are better off when represented by a solicitor than when you are not. But if you can’t afford to instruct a solicitor to handle all of your case, at the very least use a solicitor for part of it. Go and have an initial consultation with a solicitor and get some legal advice at an early stage; most solicitors will provide an initial consultation and advice for a reduced fee.
Many solicitors will nowadays also provide services on a Pay As You Go basis; i.e. you use the solicitor to do certain limited things for you, like drafting legal documents or advising when necessary, but they otherwise have no other involvement. This is often an affordable alternative to full representation by a solicitor. It’s obviously not as good as full representation, but it’s better than not using a solicitor and going it completely alone.
Beware of solicitors who offer free initial advice; this is unlikely to be bespoke advice, it’s probably nothing more than some very basic general information that you can probably get off the internet anyway.
2. Not getting a financial order in a divorce.
Lots of people who do their own divorces don’t realise that it is also important that a financial order is obtained from the court, even when financial matters have been agreed with their ex. If everything is agreed, the court can make a financial order reflecting the agreement. This can be obtained by sending a draft order and a brief financial statement to the court for the District Judge to approve. Without this, no agreement can be enforced, any pension splitting cannot be implemented and you are exposed to the danger of future financial claims.
The court will not draft this for you. A financial consent order is a complex legal document that would be beyond most non-lawyer’s ability to draft correctly. Use a solicitor on a Pay As You Go basis to prepare the necessary paperwork.
Where people do their own divorces and have managed to agree financial issues, they often don’t make a claim for financial orders in the divorce petition. They then remarry without getting a financial order from the court. This means that they fall into the so-called “remarriage trap” and will have considerable difficulty getting a financial order from the court later on.
3. Not seeking costs
Lots of people who draft their own divorce petitions don’t seek an order for costs. This causes a problem if their spouse decides to not co-operate. In those circumstances you might want to recover costs (or to threaten to seek costs if they don’t co-operate.)
4. Assuming that your ex’s solicitor is hostile to you and is going to encourage your ex to rip you off.
Family solicitors have a reputation for being tough and aggressive. Popular media always portrays them as sharks, hungry for blood. In reality, most family solicitors are trained in dispute resolution.
Good solicitors relish agreement and consensus, not conflict. Most family law practitioners are members of Resolution, (formerly known as the Solicitors Family Law Association) and abide by its Code of Practice. They will consider using non-court decide resolution methods such as constructive negotiation, mediation, collaborative process or family arbitration. Going to court to resolve disputes is increasingly unusual these days.
Non -court dispute resolution is not suitable in all cases and some cases need to go to court. However, solicitors who encourage clients to litigate and never discuss alternatives to court at all (even if only for the purposes of ruling it out where it is not appropriate) are not doing their job properly.
5. Not complying with court orders.
Not doing what the judge orders disastrous. So is not turning up to court for hearings. If you ignore court orders, you are likely to end up being ordered to pay your ex’s legal costs. If you don’t turn up to court, you are likely to find that the judge makes an order in your absence. It’s not likely be one that you like. Judges are not to be trifled with.
6. Launching applications that are doomed to failure.
Before starting any legal proceedings, you need to be certain that there is a realistic chance of success. At the very least get some advice from a solicitor about whether or not you are likely to be successful if you go to court and whether an application is worthwhile.
7. Not using mediation.
Some people spurn the idea of mediation when it is suitable for their case. They then apply to the court and find that it’s a less than ideal way to sort things out.
For example, if you apply to the Family Court for a Child Arrangements Order, you are likely to find yourself attending a hearing at magistrates court. You and your ex will find yourselves sitting outside the court room for an entire morning waiting to be called into court. You will be surrounded by people who are facing criminal charges or whose children are being taken into care. It is an unpleasant environment, to say the least. Then you go into court and things can get really ugly. You might do well, but you could just as easily come out of court with an outcome that you really don’t like, or that both of you don’t like.
By contrast, if you mediate, your chances of reaching an agreement that you can both feel is fair is much higher.
8. Deciding at the last minute that you do need a solicitor after all.
LiPs often become increasing frightened as the court date approaches. It is not unusual for them to decide at the last minute that they need to be represented by a solicitor. If you have a hearing due to take place on Monday and you try to find legal representation on the Friday before, you are likely to be turned away. Few solicitors would relish being instructed at such short notice; there simply is not enough time to properly prepare, plus our diaries are very full already. If you decide you need to be represented, contact a solicitor as soon as possible.
9. Relying on your friends for legal advice
If you are divorcing or separating, friends can be very important to you. They provide emotional reassurance and support. They are a shoulder to cry on in difficult times.
However, they are awful at providing legal advice. They won’t know what they are talking about and will lack objectivity. They may tell you what you want to hear rather than what you need to hear. They may base their “advice” on their past experiences, which are likely be unique to them.
Rely on your friends for emotional support. Rely on a solicitor for legal advice.
10. Getting advice off the internet.
This will never be tailored to your particular circumstances. It’s not advice, it’s information. Talk to a solicitor if you need advice, even if you then go on to represent yourself.
18th January 2015