One of the frustrating things about being a family law solicitor is that you often encounter people whose legal problems you can solve, but they won’t let you.
Of course, many people have legal problems and need legal advice, but simply cannot afford it. Legal aid for solicitors’ fees is very hard to come by nowadays. Simply having a low income or assets does not make people eligible for legal aid. Nowadays, in a divorce, separation or private child disputes, people only qualify for legal aid if they can allege that they are victims of domestic violence or abuse. Then, even if they qualify, they face the challenge of having to find a solicitor who still undertakes legal aid cases. Most family law solicitors have long given up legal aid work as they found it to be unprofitable.
However, there are also people who can afford legal advice or representation, but who choose not to do so. That is of course their right, although I will confess to experiencing irritation when I have a case where the other side is representing themselves, can afford a solicitor but refuse to do so, causing nothing but problems as a result as they insist on taking unrealistic positions and fail to deal with paperwork properly. Spending money on legal fees would be a worthwhile investment for them – but they simply refuse to get legal advice.
There are also people who cannot face using a solicitor for all sorts of other reasons. One common problem is cases where, say, a wife has been promised a capital settlement by her husband who also does whatever he can to deter the wife from seeking legal advice. This is probably because he is frightened that a solicitor will advise the wife that she is accepting far less than she should and that she should seek more.
I often find that the wives in these cases are frightened of the husband finding out that she’s had legal advice and that he will then withdraw his offer and she will have to fight him through the court to get it, or more. Other wives simply cannot face the legal battle with a difficult, perhaps abusive, husband which they fear, with justification, could takes years and costs a fortune in legal fees.
These wives are often being offered a deal that may not achieve fairness or meet their needs. The husbands may have failed to provide any documentary evidence of their income or asset so it is impossible to assess whether the deal is appropriate.
Another problem that frequently presents itself is where there is pension sharing being proposed, but where it is impossible to assess if the proposal will meet the wife’s needs. The only way in many cases to be certain about this is to seek a specialist report from a Pensions on Divorce Expert (PODE) report. However the husband refuses to be cooperative, the wife is left with the unpalatable choice between accepting the offer without being certain that its terms will meet her needs, or applying to the court for a financial remedy order so that the husband is compelled to produce the information to which she is entitled.
It can difficulty to persuade these clients to come in for a consultation and to receive the advice that they need, even where I say to them that I am concerned that they may be receiving less than they should.
I often have to explain to clients that whether to accept an offer is their decision, not mine, They are entitled to ignore the advice that they are given. They are entitled to take into account factors which a court might ignore, but which they feel are relevant. For example some people will accept financial proposals that are too generous to their ex, because they fear that if they seek more, it will damage the working relationship that they have with their ex about their children. There is nothing wrong with making such a decision, provided that the client also has a proper understanding of the pros and cons of the proposal. They can then make a proper decision about whether to accept the offer.
You also need a solicitor who can do the paperwork for you. Where matters are agreed, it is essential that the deal is formally imported into a financial consent order; If there is no order, the deal cannot be enforced and there is a danger of a further financial claims in the future as the court has not ordered any kind of financial clean break. If there is to be pension sharing, this cannot be implemented without an order.
The court will not produce this for litigants in person. It will expect to be presented with a draft order for the court’s approval, along with a D81 statement eating out a summary of the parties’ finances and an illustration of what they will after implementation of the deal.
Drafting the financial consent order is a skilled and technical job. I recall one prospective client telling me that he intended to draft the order himself; I tactfully tried to tell him that if he managed to do it right, I would be very impressed. These are bespoke documents, finely crafted to ensure that they work properly. He replied that he would use the standard precedents provide by the court. Ever keen on an analogy, I tried to explain to him that was like saying that all you need to make a beautiful suit is a roll of cloth and that you don’t need a tailor. In reality, you might manage to stitch a suit together, but it will look awful and fall to pieces the first time that you wear it. You need a solicitor to do it properly for you.
There is also nothing wrong with doing a deal that does not reflect what the court would order if they were not agreed. The court will not simply rubber-stamp an agreement and will consider whether or not the terms of the agreement (set out in a draft financial consent order) are appropriate. The court has the power to reject a draft order if it has concerns about it. However, there is case law that states that where an agreement is coherent and where the court is satisfied that both parties have a full appreciation of its implications (ideally having received legal and perhaps also tax or financial advice), then the court should approve the order, even if it is not what a court would have imposed of the parties were not agreed.
Seeking legal advice from a solicitor can be daunting, but you are not committing yourself to anything. Few solicitors will offer a free initial advice in family cases these days, but many will offer a discounted fixed fee for an initial consultation, so that you can get initial advice, find out about all of your options, and then decide how you want to proceed. They should regard that as money well spent. Not seeking early legal device can be a massive false economy.
14 January 2024
If you would like to arrange a consultation, please telephone 01206 848426 or click here.