Anyone contemplating seeking legal advice in relation to private family law matters should be aware of the proposed changes which are due to come into force from April 2013.
Private family law includes applications for contact with a child, residence orders and anything to do with divorce including the full range of financial applications. From 1st April 2013 these applications will no longer be eligible for public funding by the Legal Services Commission and applicants will be forced to either pay privately to commence proceedings or, if they cannot afford to do this, will have to become litigants in person to be able to take any action through the courts.
This is likely to be extremely distressing for those unable to have contact with their child or those unable to commence divorce proceedings therefore forcing them to remain married.
Public funding will still be available for private family law where there is evidence of domestic violence or evidence of child abuse, for all applications for an injunction following domestic abuse and also for legal advice in support of mediation. It is highly likely that more parties will aim to resolve matters through mediation in order to avoid costly court proceedings however it is important to note that not all cases are capable of resolution through mediation and all parties involved must be willing to mediate. In the case of a party wanting contact with their child and the other party being unwilling to allow this for whatever reason it is highly unlikely that mediation will result in an outcome that is satisfactory to both parties.
In addition to this there will also be changes in relation to how income is assessed. Currently if you are claiming a ‘passported’ benefit, for example income support, then your income and capital will not be assessed and you will automatically be entitled to public funding. Under the proposed reforms this will be abolished and all applicants will be subject to the same capital test regardless of benefits. The result of this will be that even if you are on benefits, if you have capital for example in your home then you may not be entitled to public funding, or may have to pay a contribution. This contribution will be increased to 30% of disposable income.
As reported in the Law Society Gazette this Friday 7th September, Plaid Cymru MP and barrister Elfyn Llwyd told a seminar on the future of family justice:
“The changes are likely to be detrimental to families, detrimental to access to justice and probably contrary to article 6 rights and others which come into play when a fair trial of issues is not afforded.”
He further stated that unless government appraisal is urgently undertaken the consequences for society and vulnerable families will be little short of catastrophic.
Concern has also been raised that the cuts in public funding will result in an increase in litigants in person. It is feared that this will create an increase in the demand for court time as unrepresented parties without the appropriate legal knowledge and advocacy skills struggle to put their point across thus resulting in an increase in costs and a delay in a satisfactory outcome being reached.
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All information is correct on the date of posting.