Can I get Legal Aid?

May 2016

Legal Aid is a payment from public funds available to help meet the cost of legal advice and representation in Court.

Prior to April 2013 most individuals on a low income were eligible for Legal Aid
 to cover most cases of family law, including Divorce, finances, children disputes, cohabitation and separation, care proceedings and domestic violence. You would need to show that you cannot afford to pay for legal advice and representation. The Legal Aid Agency takes into account capital assets, all sources of income, housing costs, dependent children and child care costs. However, representation in care proceedings is non-means tested.

Legal Aid Sentencing and Punishment of Offenders Act 2012 (LASPO)

In April 2013 major changes to Legal Aid were introduced by the Legal Aid Sentencing and Punishment of Offenders Act 2012 (LASPO). Following LASPO, the majority of legal aid for private law services has been stopped, save in limited circumstances, only where there is evidence of domestic violence. (Private law services include Children Act applications in respect of contact and living arrangements for the children, resolving financial issues after divorce or in cases of cohabitation and separation).

Legal Aid is now available for the following cases:-

  • Family law cases involving domestic violence or when the child is at risk of abuse from partner;
  • Forced marriage;
  • Child abduction;
  • Care proceedings – Court Proceedings issued by the Social Services Department of the Local Authority where an application is made for a “Care Order” or “Supervision Order” in respect of a child;
  • Mental Health and Asylum cases;
  • Debt/housing matters when someone’s house is at immediate risk

In family law cases involving domestic violence, it will be necessary to provide evidence of the abuse. The LASPO definition of domestic violence is any incident, or pattern of incidents, of controlling, coercive or threatening behaviour, violence or abuse (whether psychological, physical, sexual, financial or emotional) between individuals who are associated with each other.

The evidence of domestic violence required is either by way of caution/conviction, Injunction/Undertaking, evidence from a health care professional (ie.GP/Counsellor/Psychiatrist), from the refuge or MARAC (Multi Agency Risk Assessment Conference).

“MARAC is a meeting where information is shared on the highest risk domestic abuse cases between representatives of local police, health, child protection, housing practitioners, Independent Domestic Violence Advisors (IDVAs) and other specialists from the statutory and voluntary sectors. A victim/survivor should be referred to the relevant MARAC if they are an adult (16+) who resides in the borough and are at high risk of domestic violence from their adult (16+) partner, ex-partner or family member, regardless of gender or sexuality. The representatives discuss options for increasing the safety of the victim/survivor and turn these into an action plan. The main focus of the MARAC is to manage the risk and managing the behaviour of the perpetrator. Information shared at the MARAC is confidential and is only used for the purpose of reducing the risk of harm to those at risk.”

No evidence is required if you wish to make an application to the Court for an Injunction or if the Local Authority issue Care Proceedings.

Changes to Evidence Requirements

Last month (April 2016) the evidence requirements for domestic violence changed. The Court of Appeal upheld a challenge to the Government’s changes to legal aid for victims of domestic violence, namely that the evidence required had to be no more than 2 years old. The Ministry of Justice have now announced that they are more than doubling the original time limit for evidence, to 5 years. This will assist a much larger proportion of those victims of domestic violence requiring legal aid. The ministry is also introducing a provision for the assessment of evidence concerning financial abuse.

Emma Macdonald
Warren’s Law & Advocacy

Disclaimer: While we do all that is possible in terms of ensuring its accuracy, this blog contains general information only. Nothing in these pages constitutes legal advice. You need to consult a suitably qualified lawyer from the firm on any specific legal problem or matter.

Pre / Post Marital Agreements

by Paul Summerbell, 

26th February 2015

Instead of using the Courts to resolve any post-divorce, financial and property arrangements, it is possible for those who have married or entered into civil partnerships to enter into a private agreement to resolve any future disputes that may arise on relationship breakdowns.  Indeed, spouses are encouraged to settle their financial and property affairs without recourse to litigation by the Courts and most arrangements are arrived at through negotiation, mediation and agreement.

A pre-marital agreement (pre-nuptial agreement) or ante-nuptial agreement (post marriage) is a contract made between two people either before or after people get married or enter into a civil partnership.  The contract generally concerns a division of money and property following divorce.  It is understandable that people entering into marriage or a civil partnership may consider this too unromantic as it is often felt that marriage or a civil partnership is based on love and affection and should not be sullied with contracts.  Others believe that such agreements discourage marriage.

Advantages of Private Agreements

  1. The parties to the marriage or civil partnership can decide their own outcomes on divorce and cut the legal costs and acrimony of divorce.
  2. Private agreements encourage openness on financial issues between parties before or during marriage. Many marriages can end because of disagreements over family finances.
  3. Private agreements provide for certainty should the relationship break down.
  4. Private agreements may save costs following a relationship breakdown.
  5. Private agreements can protect wealth or family assets and preserve property for children from earlier marriages.

Disadvantages

  1. The circumstances of the parties to the marriage or civil partnership can change over time. This includes the birth of children, illness or disability, and the original agreement may not have envisaged these changes.
  2. One party to the relationship can exercise undue influence over the other and may mean that any private agreement is unfair.
  3. Such agreements may be viewed as unromantic.
  4. Such agreements may discourage marriage for fear of losing assets.
  5. Private agreements will involve the costs of independent legal advice for the parties to the marriage before marriage.

Why Consider a Pre-Marriage or Ante-Nuptial  Agreement?

Agreements of this nature may be particularly relevant to people in the following circumstances:

  1. For those marrying or entering into a civil partnership later in life who have already built up assets of their own and wish to protect them.
  2. For those who seek future financial security.
  3. If someone has children from a previous relationship and wants them to inherit what assets they have.
  4. For business owners.
  5. Anyone who has significant assets to protect.
  6. Those entering into a second marriage.
  7. Where there is a significant age difference between those entering into civil partnership or marriage.

Making your Private Agreement Watertight

Currently in English Law, it is not possible to make any kind of private agreement completely watertight but, in recent years, the Courts have come to attach increasingly more weight to private agreements of this nature.  This is particularly so where the agreement is seen to be fair and does not cause prejudice to the reasonable needs of either party to the agreement or to any children of the marriage and/or civil partnership.

To ensure that your private agreement is as binding as possible, it is important to obtain specialist legal advice and to ensure that:

  1. Each of the parties to the agreement have confirmed in the agreement that they have each received independent legal advice prior to entering into the agreement.
  2. There should be a minimum time for reflection of at least 21 days.
  3. The parties to the agreement have fully and frankly disclosed to each other their financial circumstances.
  4. That the agreement provides for regular review and variation of the agreement if there are any significant changes in circumstances of the parties.
  5. That any agreement entered into meets both the parties’ needs.
  6. The agreement does not prejudice the reasonable needs of any children of the family.
  7. That any of the aforementioned provisions provide that the agreement is contractually valid and that there has not been undue influence or misrepresentation.
  8. That any agreement is made by deed and that the parties to the marriage or civil partnership sign the agreement to confirm that they understand it and that they also agree that the agreement is a qualifying nuptial agreement and they intend for it to deal with their financial circumstances following their relationship breakdown.

Conclusion

It is important to appreciate that any pre or post nuptial agreement is not 100% binding although the Courts have given such private agreements increasingly more weight in recent years and, provided the private agreement complies with the legal requirements that the Courts have given to make them more likely to be binding, in all likelihood, the Court will hold the parties to any such agreement that they freely enter into.  It is important to appreciate that any pre or post nuptial agreement as described is very much a bespoke legal document and anyone entering into such an agreement on marriage and/or civil partnership should seek the appropriate specialist legal advice.

Paul Summerbell
Warren’s Law & Advocacy

Disclaimer: While we do all that is possible in terms of ensuring its accuracy, this blog contains general information only. Nothing in these pages constitutes legal advice. You need to consult a suitably qualified lawyer from the firm on any specific legal problem or matter.