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DIVORCE FOR MEN - THE EFFECT OF LEGAL AID

Divorce for men in UK divorce law is very unfairly affected by Legal Aid rules. Typically, a wife who remains at home to look after the children will be able to obtain Legal Aid for divorce because she has no, or a very low, income and the income of her estranged spouse is not taken into account for this purpose. The husband, on the other hand, will typically not be eligible for Legal Aid because of his income. The first significant effect of this is that the husband will usually be charged very much more for the same legal advice than the wife. This is because lawyers - barristers and solicitors - almost invariably charge "private clients" considerably more than legally aided clients. It is often almost twice as much. The reason for it is that legal aid rates of payment are fixed by government (at artificially low rates) whereas it is the market which determines the going rate for private client work.

A husband who finds himself in this position should always (unless money really is not a problem) find out exactly how much he will be charged and perhaps ask how that compares to the Legal Aid rate for the same work. By doing it this way he is probably more likely to be able to negotiate a lower rate of charging. It is important to remember that the market works both ways! Nevertheless, this is the unfortunate position many men find that they are in. This obviously puts pressure on them to settle on terms which are quite unreasonable and unfair but if they do not have the funds to continue they very often have little choice.

The second significant effect is that a legally aided wife has a very deep purse to fund her legal action despite the fact that she may have no income or capital of her own. Legal Aid divorce is not actually free in these circumstances. The wife's solicitor's and barrister's bills will be paid for the wife by the Legal Services Commission out of taxpayers' money in the first instance. However, when a legally aided litigant recovers any money or property with the help of Legal Aid the Legal Services Commission can and will recover the money it has spent from the property recovered.

If, for instance, the wife makes a claim to have the matrimonial home transferred into her sole name and that is what happens at the end of the day then she has "recovered" the house and the Legal Services Commission can put a charge on it (called "the Statutory Charge" because it is laid down by Act of Parliament) to get back the money spent on the case. In effect what this means is that the wife can mortgage the house to pay for her legal costs. Interestingly enough, the husband cannot do the same. If the house is in joint names the wife obviously would not agree to such borrowing and if the house is in the husband's sole name the husband will soon find he is on the receiving end of an injunction if he attempts to do any such thing. The wife's lawyers cannot lose either way - they will be paid by the Legal Services Commission no matter what the outcome.

Legal Aid is not usually limited in matrimonial proceedings (presumably because the Legal Services Commission is confident of recovering its money with interest via the Statutory Charge) and so, in effect, the lawyers for the wife know they are dealing with a client who has a very deep purse. The husband is not usually in that position.

This does not end the list of disadvantages for the husband. Ordinarily the rule in civil litigation is that the loser has to pay the winner's legal costs (as well, of course, as their own). There is some obvious sense to this. If, for instance, A owes money to B and B has to resort to Court proceedings to recover the debt it is only fair that A should have to pay B's legal costs of doing so. This is the general principle and it encourages people to be reasonable in the proposals which they make to settle any given dispute: they know that if they do not make reasonable proposals but choose instead, say, to put up a defence which they know to be worthless they will have to pay their opponent's legal costs.

It is fair to say that in matrimonial procedings the general rule is that each side should pay their own costs although here is still a residual jurisdiction for a court to order a very unreasonable litigant in matrimonial proceedings to pay the other's legal costs. So, for instance, if a non-working wife from a short marriage demanded that her former husband should transfer the former matrimonial home into her sole name and pay her half his net salary for the rest of her life so long as she remained unmarried it is almost certain that such a claim would fail. And if the husband were to spend money in defending such an unjustifiable claim most people would think that the wife ought to bear those costs which her unreasonable stance had occasioned.

It cannot be stressed too much that where the wife is legally aided this is not the case. Legal Aid gives such a wife an extremely unfair advantage: surprising though it may seem the general rule is that costs cannot be awarded against a legally aided person. The rule (laid down by the Legal Aid Act 1988) reads:-

"An order for costs (against a litigant in receipt of Legal Aid) can only be made if:-
(a) ...the court is satisfied that the unassisted party will suffer severe financial hardship unless the order is made; AND
(b) ..the court is satisfied that it is just and equitable in all the circumstances of the case that provision for the costs should be made out of public funds."

It is very rare for these conditions to be satisfied and what it means, in effect, is that a legally aided litigant can pursue litigation without being at any real risk of paying the costs of the other side if the litigation is unsuccessful. This rule is almost certainly only in existence to save the public purse but it places the husband facing a legally aided wife or ex-wife who is completely unreasonable in her demands at a great disadvantage. Everyone involved in the system knows this and it encourages unreasonable demands by legally aided litigants (or their lawyers) such as many wives in matrimonial proceedings.

It is quite wrong but the financial consequences for the husband can be very serious indeed. The scales are not evenly balanced because if the non-legally aided husband is unreasonable about his conduct of the litigation and loses the case the wife's lawyers will ask for, and possibly get, an order that the husband pay the Legal Service Commission's costs. As a matter of interest, if there is no order for costs and the wife eventually has to pay her own costs then she will pay those costs at the Legal Aid rate. However, if the wife's lawyers get a costs order against the husband so that he has to pay the costs of his legally aided wife he will be ordered to pay her costs at a private client rate which is much more. This rule is totally indefensible.

Given this context of the Legal Aid situation it is not surprising that it affects how cases are conducted. It is always open to husband and wife to come to an agreement between themselves as to what the financial settlement should be and, if at all possible, this is usually the best course of action because it is agreed and because it leads to least acrimony, bitterness and cost. But for such an agreement to be really final it needs to be sealed by a court as a "Consent Order". This means that the agreement is embodied as an order of the court and in that way it can conclude matters once for all. If this is not done there is a very real risk that one of the (ex) spouses might re-open the matter later, sometimes much later, when circumstances have changed. There is a real risk of this happening if there is no court order.

A simple agreement between husband and wife is not final unless this step is taken (although, of course, some couples might be satisfied with such an informal arrangement). What is more than likely to happen is that one or other of the parties will consult a solicitor at some stage. This may be at the very outset to determine what the actual legal position is (and anyone involved in a divorce would usually be well advised to do this) or it may be that husband and wife want their own informal agreement "legalised".

Please continue t o find out more about how ancillary relief proceedings affect divorce for men.

 
 

 
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