Why it’s not easier when the other side is unrepresented.

Sometimes a new client will consult me and will express the hope that his or her spouse or ex-spouse will not go and see a solicitor of their own. This is often because they may fear that the ex will receive legal advice that encourages them to back out of an agreement or that they may be advised to do something that the client doesn’t want to happen.

It’s an understandable fear, but my view is that it is prudent for both sides to be legally represented wherever possible and as a result, every letter or email that I send to someone who is representing themselves will include the following line:

This letter raises important legal issues and I urge you to seek the advice of a solicitor who specialises in family law. Details of specialist family solicitors can be found at www.resolution.org.uk

I choose those words quite carefully. Firstly, if they are going to seek legal advice it would be best if they seek it from a solicitor who knows what they are talking about. On occasions, I encounter solicitors on cases who are dabbling in family law, rather than concentrating on their normal area of work. This is usually a recipe for delay at best and disaster at worst.

(For the avoidance of doubt, when I say solicitor, I am including legal executives who specialise in family law. There are many very experienced and well-trained legal executives who are a match for the best of solicitors. When I say “specialist family solicitors” I am including legal executives who are employees or partners at solicitors’ firms).

I would also prefer wherever possible that the ex instructs someone who is at the very least a member of Resolution (and preferably an accredited specialist). They are more likely to adopt an approach in accordance with Resolution’s Code of Practice and be aware of the importance of alternatives to court such as negotiation, mediation, collaborative law or arbitration.

When I began practising as a family lawyer back in 1996, the vast majority of cases involved parties who were both legally represented. It was relatively rare to encounter a litigant in person. Nowadays, it is very common for at least one person to represent themselves. The main reason for that is that legal aid is no longer available for the vast bulk of clients involved in family cases, even where they are on a low income and have little, if anything, in the way of assets.

There are many reasons why it is better for a client’s ex to be legally represented:

• If one party isn’t receiving the advice that he or she needs, they are much more likely to take steps which are not in the client’s best interests. For example, they may decide to hide assets in order to defeat the client’s claim. They may issue unjustifiable or premature court applications. They may reject reasonable and sensible proposals and insist on having their day in court, which does nothing but cost my client a huge amount of money and increase hostility between the parties.

• The other side is often tempted to think “I won’t waste money on a solicitor. We only need one solicitor. My husband/wife can afford it so he/she will have to pay for one”. However, they also are frequently not inclined to believe anything that the spouse’s solicitor may tell them. It is in my client’s bests interests for the ex to be legally represented so that they receive the advice that they need, rather than simply refusing to believe what I say which does nothing but hinder progress.

• They may become confused about who is actually acting for who. I am often alarmed to find that some people without lawyers think that a divorcing couple can have one solicitor acting for them. There is an enormous conflict of interest there. After informing a litigant in reasons of the legal justification for my client’s position, I also ensure that I emphasise to them that I cannot give them legal advice and it is important they seek their own legal advice.

• Parties who represent themselves struggle with the paperwork. For example, divorce petitions look deceptively simple nowadays. I have had plenty of cases where one party represents themselves and doesn’t compete the paperwork properly, leading to it being rejected by the court.

A good example of this is the D81 Statement of Information. When a divorcing couple reach a financial agreement, the court needs to be asked to make a financial consent order reflecting the terms of the agreement in order to ensure that it is legally binding and enforceable, and (if it contains a clean break), that no further financial claims can be made in the future. To get this order, the parties have to lodge a draft financial order with the court for the District Judge to approve. This in itself is complicated. A financial order is an extremely technical, bespoke document and it is beyond the abilities of most litigants in person to draft one.

The draft order must be accompanied by a D81 Statement of Information completed and signed by both parties. This sets out a brief summary of the parties’ financial circumstances so that the court can assess if the proposed agreement in the draft order is fair and meets everyone’s needs. The standard D81 is a very poorly conceived document; if I was a District Judge, my heart would sink at the sight of a D81 because they are often not filled in correctly and often do not give the court a clear picture of the parties’ finances, not least because there is no requirement to provide an illustration of what the eventual outcome would be.

The D81 is rarely completed properly by litigants in person. They don’t put the correct pension figure on the form (if they have a pension valuation at all; if they haven’t got a solicitor, they probably won’t have been told to get the valuation and some valuations, especially from public sector funds, can take months to arrive). They probably won’t put the correct figure for their net income on the form. Time and time again, a litigant in person will simply put their take home pay on the form, but what it asks for is net pay (i.e. gross pay, less tax and national insurance). It doesn’t want the figure that the litigant in person actually takes home after deduction of season ticket loans, union dues, pension contributions etc.

The form also for some reason requires both parties to sign it twice. One signature is for a statement of truth confirming its accuracy and the other signature is a confirmation that they have seen the other sides’ statement. Why only one signature could not achieve this is beyond me. Time and again I have it return this to litigants in person because they haven’t signed it twice, despite me telling them to when I first sent it to them.

When one side in a case is not legally represented, the effect is usually to cause delay and additional conflict. It now takes far longer for cases to proceed through the Family Court because of the huge number of cases in which on one or both parties are unrepresented. It is usually far quicker and simpler where both sides have legal representation.

5 October 2019

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