More and more people who are in relationship breakdowns decide that they will represent themselves in court proceedings. This is entirely understandable; solicitors can be expensive, and people who are facing a separation or divorce can be under financial pressure.
People who represent themselves at court are known as litigants in person (LiPs for short).When I first began practising family law in 1996, it was quite unusual to encounter LiPs. People on low incomes would usually be eligible for legal aid to cover their legal fees. However, legal aid has been drastically cut back since then. In private law family cases (i.e. divorce financial remedy cases, children disputes, unmarried couple separations and domestic violence cases – but not public law care proceedings) legal aid is now only available to cover legal fees for people who are victims of domestic violence or abuse.
Furthermore, fewer and fewer solicitors will now undertake legal aid work. The payment rates are appalling low. They were never high, even back in the ‘90’s, but they have barely changed in the years since and not surprisingly one firm after another decided to stop doing legal aid work. It was simply too unprofitable. As a result, as with so many other towns and cities, as of January 2025, there are no law firms in Colchester that undertake private family law legal aid work.
This can come as a terrible surprise to many people on low incomes who assume that they will be eligible for legal aid and who have to be told that they simply are not. (They may be eligible for legal aid to cover a mediator’s fees, but again, more and more mediators have given this work up too. People who opt to mediate however will usually be eligible for the government voucher scheme entitling them to £500 towards the mediator’s fees if their dispute is about their children).
I often find that prospective new clients assume that they will be eligible for legal aid and when I tell them that they are not eligible, because they are not victims of domestic violence or abuse, they then tell me that they will try another solicitor to see if they are eligible. I have to repeat to them that they are not eligible and they will not be able to get legal aid anywhere. Depressingly large numbers of people find this difficult to believe.
It can also come as a nasty surprise for people who have been told that they are eligible for legal aid because they are victims of domestic violence or abuse, to then discover that they cannot find a solicitor who does legal aid.
I have been involved in a surprisingly large number of cases where one party who is eligible for legal aid, but nevertheless cannot find a legal aid solicitor and end up acting as a LiP in a domestic violence injunction application. Even if they can find a legal aid solicitor, they may find that the solicitor is overwhelmed with work and cannot take on any more work. If the legal aid solicitor will take them on and get them a legal aid certificate to cover an application for a domestic violence application, they often find that the firms are geared solely towards that type of work. Although, due to their status as domestic violence or abuse victims, they may also be eligible for legal aid to cover work resolving the financial aspect of their divorce or a dispute about child arrangements, they may find that their legal aid solicitor does not have the necessary expertise to handle that work and says that they cannot help. Many specialist legal aid firms now concentrate on domestic violence cases and employ very junior lawyers to do the work. Those firm’s clients may find themselves on their own when sorting out other issues.
So, if you are considering representing yourself as a LiP, what things do you need to be aware of?
- Are you absolutely sure that you want to be a LiP?
Representing yourself at court can be a terrifying and bewildering experience. It is very stressful. You are likely to have at best a shaky grasp of what is involved. The court will expect you to use the same procedure as a case where both parties are legally represented. If you don’t do things the right way, it can damage your case.
I often find that people who represent themselves think better of it as the court date approaches and they then look for legal representation. It can be very difficult to find a solicitor who will take on a case at very short notice , given the amount of work involved. If you want to be represented at court, contact a solicitor as soon as possible.
- Try alternatives to court.
Going to court should be the final resort. There are many far better ways to resolve family disputes.
The main alternatives to court are the following:
- Negotiations (either directly between the parties or through solicitors)
Churchill famously said, “Jaw jaw is better than war war.” Try to negotiate an agreement, if possible through solicitors. Most people who divorce do not go to court to sort out their finances. They reach an agreement. Getting legal advice makes agreement more likely.
Negotiations can include things like round table meetings, Private Financial Dispute Resolution Appointments and Early Neutral Evaluations.
Meditation has many advantages over litigation through the court, including being faster and far less expensive.
If you use a family mediator to try to reach an agreement, you should also use a solicitor to get legal advice during the mediation process as this will make it more likely that you reach an agreement.
Mediation is an alternative to using the court, it is not an alternative to using a solicitor. You should use a solicitor for legal advice and then to formalise any agreement reached in mediation.
Most solicitors cannot offer this as they have not done the necessary training, but there are many who have. (I undertook my collaborative training in 2006 and have done a large number of collaborative cases) This is often a much better way to resolve matters than going to court. Again, it is likely to be faster and less expensive than court.
- Arbitration
If what you need is a legally binding decision from an independent third party in accordance with the law, but you don’t what to go to court to get this, you and your opponent can appoint a family arbitrator to do this. It is best thought of as a private court appointment.
Arbitration is often faster and result in the same outcome. It is not a cheap option, but can be less expensive than court.
- Even if you are going to be a LiP, get some legal advice first.
A huge number of people come to me for legal advice after they have commenced an application at the court. This is never a good idea.
You should get legal advice before rushing off to court. Once the application is underway, you are stuck with it and it is difficult to back out. There can be very unexpected consequences if you go to the court.
For a start, the court may tell that it is not going to deal with your application because it is not satisfied that you have taken sufficient steps to resolve matters outside court. For years, the court has required applicants in most cases to attend a Mediation Information and Assessment Meeting (MIAM) with a family mediator before an application can be started for a financial remedy order in a divorce or an application for a child arrangements order. Start the application without first attending a MIAM and you risk the judge refusing to entertain your application until you have attended a MIAM.
Furthermore, since April 2024, the court now has the power to stay an application (i.e.. to refuse to deal with it) if it not satisfied that sufficient efforts have been made to resolve the dispute using non-court dispute resolution (NCDR), i.e. mediation, collaborative law, arbitration, Private Financial Dispute Resolution Appointments or Early Neutral Evaluations.
You may get to the first court hearing only to discover that the judge thinks that you haven’t tried hard to enough to resolve matters outside court and stays your application to encourage you and your opponent to use NCDR. (It cannot force parties to use NCDR, but it can decline to consider an application until you have tried).
- Get legal advice early (and keep getting it)
Before you try to represent yourself, get some legal advice from a specialist family solicitor. It is rare to find a solicitor who will provide a free initial consultation in a family case, but many solicitors will offer an initial consultation for a discounted fee.
Many people have unrealistic expectations or understanding of what is likely to happen and what they are likely to get.
For example, I recall a potential client who told me that he was spending a considerable amount of money on getting a private detective to tail his wife so that she could obtain proof of adultery so that he could divorce her. I advised him to stop wasting his money. We didn’t need proof of adultery; in those days, there was still fault-based divorce, but in rare cases where adultery was not admitted, the solution was simply to instead divorce on the basis of unreasonable behaviour instead (for which we needed no proof or admissions).
Another example is the mistaken assumption that if you divorce, there is an automatic equal split of the assets. But equality is only the starting point; depending on the circumstances, the court can award one party a greater share in order to achieve an appropriate balance between fairness and meeting their needs. In some cases an equal share is appropriate, but in many cases, it is not.
Another difficult issue can be pensions. Many people ignore pensions when they divorce. There is huge concern among family lawyers and judges that many women do not seek pension sharing orders in relation their husband’s pensions and that they are therefore not receiving enough to meet their needs.
Unmarried couples also often have a wholly unrealistic expectations about what might happen when they separate. There is no such thing as a common law marriage, bit many people think such things are recognised in English law. The outcome can be very different to what would happen in a divorce.
Get some legal advice early on so that you have a realistic understanding of what your legal position is.
- Use a solicitor on a Pay As You Go
Many solicitors will be prepared to offer a pay as you go service where they will undertake limited amounts of work for you as and when needed, often for a prepaid fixed fee.
This could be for things like an advice session or to draft a document. You would still have to represent yourself at court and liaise with the court and your opponent.
Pay As You Go (sometimes called unbundled work) is not as good as being properly represented at court, but is better than going it completely on your own.
- Use a direct access barrister
Some barristers may be prepared to act for you at a hearing or to give specialist advice. This is not the same as using a solicitor properly, as their role will be limited. They do not handle the case from beginning to end in the way that a solicitor will.
However, it can be combined nicely with using a solicitor on a Pay As You Go basis.
- Keep copies of the court papers
A horrifyingly large number of people who represent themselves send paperwork to the court, but don’t keep a copy for themselves or send copies to their opponent.
Keep copies of everything.
- Avoid paid McKenzie Friends
A McKenzie Friend is a lay person whose role is to provide moral support and reassurance in court. They can sit with you to help find the right piece paper at the right time, or to provide assistance, or to nudge you to ask the right question or to make a good point.
However, they are not lawyers. They have no right to address the court and the legal advice they provide is likely to be poor. Unlike solicitors and barristers, they are not regulated, insured or trained.
In particular, avoid paid so called “professional” McKenzie Friends. They are nothing of the kind. Many paid McKenzie Friends like to portray themselves as a cheap alternative to a solicitor. Fo example in 2017 a McKenzie Friend made the mistake of referring to himself as a quasi-solicitor. The judge disagreed, pointing out forcefully that there is “no such thing as a quasi-solicitor” and that “you are either a solicitor or you are not”.
Avoid them like the plague.
- Don’t expect your opponent’s solicitor to give you legal advice.
If your ex is legally represented, they will be getting professional legal advice. It is not uncommon for LiPs to assume that this advice will be shared with them. It will not.
Do not expect your ex’s solicitor to give you any legal advice at all. They may make legal points to support their arguments and they should not mislead you about what the law is. However, if you ask them for legal advice, you can expect to be politely, but firmly, told that they cannot advise you and that you should seek legal advice from your own solicitor.
- Do what the court says
At every hearing, the court will make an order saying what happens next. For example, it will direct (i.e. order) the parties to take steps to produce evidence and to take steps to move the case forward.
Do what the court tells you to do. If you don’t do it on time, or at all, you will damage your case and may be ordered to pay your opponent’s costs at the next hearing, because you will have wasted the court’s time (and probably caused your opponent to incur avoidable expense). The quickest way to lose the court’s sympathy is to fail to comply with its orders.
Take these orders seriously. You have been ordered to do something. Compliance is not optional. A LiP once told me that the court had asked them to do something. I rather bluntly explained that the court had not asked them to do anything. It had told them to. It wasn’t a request.
If you have to go to court, you are better off being legally represented by a solicitor, but if you have to represent yourself, bear in mind the above tips.
11 January 2024
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