Well, it’s finally happened. Changes in the way Legal Aid funds family law cases came into effect at the start of April. Seems like we have been talking about them for ages and finally it is all change.
In actual fact, there have been two significant developments stemming from the introduction of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (“LASPO”) which came into force at the beginning of April. The most radical change is that Legal Aid will not be available for “normal” family law matters at all from now on. Historically, subject to a test of means and merits, people with lower incomes could seek help from public funding to pay lawyers to represent and advise them on matters such as divorce, finances and children issues arising from the breakdown of their marriage or relationship. This made “access to justice” more readily available and, although we as a firm did not provide a Legal Aid service, it often helped that the other party had some legal representation to try and progress and resolve the case.
Now, Legal Aid will be limited to cases like care proceedings, cases involving domestic violence or child abduction. For everyone else (ie, the vast bulk of cases), there will be no public funding for legal representation in family law at all.
This inevitably means there will be thousands of people who will not be able to afford to take advice about their situation, and this will have a knock on effect on our clients – who may not have sought Legal Aid for themselves, but are now more likely to face an unrepresented opponent, or “litigant in person”. Will this mean that cases will become more protracted, as unrepresented parties may struggle to keep up with the procedural rules and may not have the benefit of reasoned advice as to their position? Only time will tell.
The second change brought about by LASPO is to make it possible in some cases to apply to court for a lump sum from your opponent to provide you with, effectively, “a fighting fund” to pay for your legal fees. Historically it has only been possible in some cases, such as applications for financial provision because of the breakdown of a marriage, to apply for interim maintenance payments, which could include a component towards legal fees. The difference now is that where there is capital or savings in the other party’s name, the court can order that part of it is handed over to cover legal fees.
These new Legal Services Orders can also be backed up if necessary by an Order for Sale, again not previously possible unless both parties agreed. So if your opponent is ordered to hand over monies for you to pay your lawyer with and doesn’t comply, it may mean they have to sell an asset or property to realise the funds.
This may give rise to a whole new genre of proceedings – cases brought and fought merely over how the funds will be produced to pay for the main application. Tactically, forcing the other party to “cash in” assets so that you can pay your lawyer to fight them about other issues may change their attitude to the case as a whole.
It is not yet clear how common these types of applications will become. However, it seems to me that it does rather make a nonsense of the position that in family cases, the initial presumption is that each party bears their own costs, if you can effectively force your opponent to pay for your lawyer as the case goes along.
Kate Butler
Family Lawyer, Northampton
