Legal Aid For Divorce & Family Matters
WHAT IS LEGAL AID FOR DIVORCE & FAMILY MATTERS?
Legal aid is assistance provided by the government to help individuals on a low income, not working or on benefits with legal costs that they can incur during a divorce and family matters.
It is intended to help individuals:
- Afford the costs of solicitors and barristers during your divorce
- Get divorce legal advice and assistance from a solicitor
- Get a solicitor or barrister to prepare you case for a court hearing
- Get representation in a family courtroom
- Get a solicitor to complete and submit forms
- Have the right to a fair divorce
- Get access to family mediation .
WHEN IS LEGAL AID AVAILABLE FOR DIVORCE AND FAMILY MATTERS?
Legal aid is available for divorce and family matters if you comply with the criteria and eligibility for legal aid. This will depend upon 2 things:
Your financial situation
Your eligibility for legal aid will depend upon your financial situation. Your income, your savings, your investments, benefits, assets and property will all be taken into account. Sometimes the income, savings, investments, benefits, assets and property of your partner will also be taken into account.
You will have to prove you cannot afford legal costs.
For individuals who are below the age of 18 years, sometimes the income, savings, investments, benefits, assets and property of the individuals with parental responsibility can be taken into account.
The kind of divorce and family matter you need legal aid for
- If there is domestic abuse involved in the proceedings and you and your child are at risk of harm.
- If there is financial abuse involved in the proceedings
- Forced marriage
- For child abduction
- If there is a chance you and your children could be rendered homeless.
- For family mediation
WHO ADMINISTERS LEGAL AID?
The Legal Aid Agency administers legal aid (LLA):
Address – Unit B8, Berkley Way, Viking Business Park, Jarrow, South Tyneside, NE31 1SF
Telephone – 0300 200 2020
Email – contactcivil@justice.gov.uk
DO YOU HAVE TO PAY BACK LEGAL AID FOR DIVORCE AND FAMILY MATTERS?
Yes you do. Legal aid costs incurred during all divorce and family matters will need to be paid back the majority of the time. Normally, you will need to pay back legal aid from your financial settlement once your case is concluded – when you win money, investments and property.
The legal aid agency will put a statutory charge on the money and property you gain through your financial settlement. If this property will be used as your home or the money is used to buy a home then the legal aid agency will register this charge on your home with the Land Registry. You will pay 8% interest on this debt and it is calculated daily. Interest is charged on the initial amount owed (the statutory charge) not on the interest being accumulated. You will then repay this debt at a later date, most probably when your house is sold in the future. If the legal aid agency register a charge on your home you cannot take out a loan with your house as security or sell your home until your have repaid your legal aid bill.
You can pay back your legal aid bill by selling your property and from savings in one lump sum. Or if you cannot do this then you can pay it off through monthly instalments. These instalments can be increased or decreased depending upon your circumstances.
If the judge orders the other party in the case to pay your legal bill then you must use this money that you have been awarded to pay your legal aid bill.
ARE THERE INSTANCES WHERE YOU WILL NEED TO PAY SOME OF THE LEGAL COSTS UPFRONT?
Sometimes legal aid will not cover all your legal costs. The legal aid agency will inform you and your solicitor:
- If you have to pay a lump sum from your assets upfront
- If you have to make monthly payments from your income.
CAN YOU CHECK IF YOU ARE ELIGIBLE FOR LEGAL AID?
Yes you can. The government has a webpage where you can check in advance whether you will be eligible. Please click the link below.
LINK TO GOVERNMENT WEB PAGE FOR CHECKING IF YOU ARE ELIGIBLE FOR LEGAL AID
WHAT IS THE PROCESS FOR APPLYING FOR LEGAL AID?
Who can apply for legal aid?
- A solicitor can apply for you.
- A mediator can apply for you.
The forms a solicitor will use are forms EX80A and EX80B.
We have NOT gone into detail how to complete the forms above because your solicitor will need to complete the majority of the form.
What documents and information will you need to provide?
- Bank statements
- Pay slips
- Savings statements
- Investment statements
- Details of all assets and properties you own.
- Your national insurance number.
- Marriage and relevant birth certificates
- Evidence of domestic abuse and violence (if applicable)
- Evidence you are or will be homeless (if applicable)
If there is anything else required, your solicitor or mediator will inform you.
IF YOUR LEGAL AID APPLICATION IS SUCCESSFUL WHO WILL THE GOVERNMENT PAY IT TOO?
If you qualify for legal aid, it will be paid directly to the solicitors firm and family mediation firm. It will not be paid directly to you.
The legal aid agency will issue a legal aid certificate which states:
- The amount of money that the solicitor can spend on your case
- The type of legal aid that they have granted such as solicitor advice and assistance or representation in court
Once they have this certificate the solicitor or mediator will conduct your case up to the amount that has been given by the legal aid agency. They will then send a bill to the legal aid agency who will pay them directly. The legal aid agency will assess the bill. You are also entitled to see this bill before it is sent to the legal aid agency.
IF THERE IS A CHANGE IN YOUR CIRCUMSTANCES DO YOU HAVE TO INFORM THE LEGAL AID AGENCY?
Yes you do. The legal aid agency must be informed of any change in your financial circumstances or any change with regards to your case.
DO YOU HAVE TO CAN YOU GET LEGAL AID IN AN EMERGENCY?
Yes you can. The family mediation firm or the solicitors firm will apply directly as stated above.
EXCEPTIONAL CASE FUNDING (ECF)
What is exceptional case funding?
When your case is not eligible for legal aid but it can be shown that your human rights are at risk, then your case could be eligible for legal aid. This is called exceptional case funding (ECF).
Where ECF does not cover all your legal costs you may have to pay some of them yourself.
How can you be eligible for ECF?
- If you can prove that you cannot afford legal aid. It is highly unlikely you will get ECF if you have money, savings, investments, property, assets or a high income.
- If you can show that not getting legal aid infringes on your EU right to legal representation.
- If you can show that not getting legal aid infringes on your rights under the European Convention of Human Rights.
What will you need to prove to be eligible?
- You are unable to fight your case yourself because your case is complicated, difficult to prove or because you cannot conduct your case yourself perhaps due to literacy reasons..
- Your human rights are affected.
- The outcome of your case is of paramount importance.
How do you apply for ECF?
- Normally a solicitor will apply for ECF for you.
- You can also apply yourself.
If your case needs to be heard at the family court
You will need to complete ECF application form CIV ECF 1 and form CIV APP 3.
If you are on benefits you must also complete form CIV MEANS 2.
If you are not on benefits you must complete form CIV MEANS 1.
If your case DOES NOT have to be heard at the family court
You will need to complete ECF application form CIV ECF 1 and form CW1.
You will need to send your completed forms to contactECC@justice.gov.uk
You will normally get a reply within 25 working days. However, if there is an emergency you can get a reply back in 10 working days. You will need to inform the legal aid agency that your case is an emergency one on your application form.
We have NOT gone into detail how to complete the forms above because your solicitor will need to complete the majority of the form.
WHAT IS THE REALITY OF LEGAL AID?
The public perception of legal aid and the realities of legal aid are quite different. Many people are under the belief that legal aid is fully available if you have no money. That is not true. There is also a fallacy that people (mainly women) can manipulate the legal aid system by accusing their partner of domestic abuse and have access to a limitless fund to fight their divorce. Again this is not true and reporting that this is the case is irresponsible and sensationalist.
The threshold to qualify for legal aid is extremely high and out of the reach of the vast majority of people. So where economic and financial abuse (pre and post separation) is at play the current legal aid system leave many people in a vulnerable position.
For those who do get legal aid please keep in mind the following:
- If you are awarded legal aid once your case is sorted you will have to pay it back. Therefore legal aid is no more than a backdoor loan.
- The solicitor working for legal aid may not be able to provide the level of work required due to limited funds.
- The solicitor may quickly use the legal aid fund leaving you high and dry if your case is acrimonious and dragging on and serious issues are not getting resolved..
- If the other side is aware that you have legal aid they may bombard your solicitor with futile letters and stuff. When your solicitor replies and deals with this ‘futile stuff’ it will use up the legal aid money. There may not be enough legal aid money left to deal with the serious issues, again leaving you high and dry.
HOW DO YOU FIND A LEGAL AID SOLICITOR?
You can find a legal aid solicitor in your area by clicking the link below:
LINK TO GOVERNMENT WEBSITE FOR FINDING A LEGAL AID ADVISOR OR FAMILY MEDIATION.
WHO DO YOU CONTACT ONCE YOUR CASE IS CONCLUDED AND YOU WANT TO TALK ABOUT YOUR LEGAL AID BILL?
If you want to discuss, you have some questions or concerns about your legal aid bill you can contact the legal aid agency secured debt team.
Address – Secured Debt Team, legal aid agency 1, PO BOX 10619, DX324205, Nottingham 59, Nottingham, NG6 6DX, UK
Telephone – 0300 200 2020
Email – secureddebteam@justice.gov.uk
TRAPPED CAPITAL IN TERMS OF LEGAL AID
Trapped capital is inaccessible capital (usually in a home/property) that exists on paper but is not is not available to an individual so they can secure a loan against it for legal fees or for legitimate reasons they cannot or are not in a position to sell it. However, this trapped capital will result in them not being eligible for legal aid as it takes them above the threshold to obtain legal aid. Due to this the individual is disadvantaged by not obtaining legal representation and access to justice.
LINK TO GOVERNMENT WEBSITE FOR TRAPPED CAPITAL PRACTICALITIES AND CASE LAW