Family law disputes – who is entitled to legal aid?

When disputes involving family members come to court there is no guarantee that legal aid will be granted. Disputes between family members, referred to as private law rather than public law matters, typically involve disagreements in divorce or separation cases over where a child should live, or the amount of contact the child should have with a non-resident parent, as well as disagreements over finances and property.

The absence of legal aid presents an issue for many people, as private family law proceedings are often very complex and costly. For example, if proceedings reach a contested final hearing at court, parties can expect to pay upwards of £25,000 each.

However, in some private disputes, people can be entitled to legal aid. Applications for legal aid are made through the Legal Aid Agency’s (LAA) website, and your Family Law solicitor can help guide you through the application process. The LAA requires applicants for legal aid to satisfy two tests before funding will be granted; the ‘means’ and the ‘merits’. Failure to satisfy either of the tests will result in the application being rejected.

The Means Test looks at a person’s financial circumstances.

The purpose of legal aid is that it should be available to those in society who cannot afford their own legal fees. Anyone with more than £8,000 in savings or assets (eg. who own their home or car), a gross monthly income of more than £2,657, or a monthly disposable income of more than £733 will not be entitled to legal aid. A simple way of calculating whether you will be eligible for legal aid is to take this short online test: http://civil-eligibility-calculator.justice.gov.uk/.

Those in receipt of benefits are more likely to be granted funding. Applicants for legal aid should make their solicitor aware of all benefits and tax credits they receive. There are a number of ‘passported benefits’ which will greatly increase the chances of a successful application:

  • Income Support (IS)
  • Income-based Jobseeker’s Allowance (JSA)
  • Universal Credit (UC)
  • Guarantee Credit element of Pension Credit (GC)
  • Income-related Employment and Support Allowance (ESA)

When making a legal aid application, your solicitor will need to see the following documents:

  • Bank statements for the last three months for all of your accounts (i.e. savings and current account).
  • Copy of your tenancy agreement.
  • Copies of your most recent benefit award letter for all of the benefits you are entitled to.
  • Copies of your last three months of wage slips, if applicable.

Once these terms have been met the application can move to the next stage of the LAA process. However, depending on their circumstances, an individual may still be required to pay a monthly contribution towards their legal aid costs (usually £100-£200).

The Merits Test:

The merits test is based on the likelihood of success of your case. It is your opportunity to explain to the LAA why you deserve public funding. Your case must have a better than 50% chance of success. To do this you will have to provide a statement, which your solicitor will help draft.

To satisfy the merits test within the scope of legal aid you must have proof of:

  1. Evidence of domestic violence against you by the other party to proceedings.

This can be in the form of:

  • A relevant conviction, caution or arrest for domestic violence.
  • A relevant injunction, such as a non-molestation order, occupation order or restraining order.
  • A court’s finding of fact in relation to domestic violence.
  • A letter from a health professional stating you have been subjected to domestic violence (e.g. if you see your GP due to depression/anxiety caused by domestic violence).
  • A letter from the police, local authority, independent domestic violence advisor (IDVA), member of a multi agency risk assessment conference (MARAC), or a letter from a refuge stating you have been subjected to domestic violence.

Or,

  1. Child protection concerns (for applications involving children only) concerning the other party to proceedings:
  • A relevant conviction, caution or arrest for a child abuse offence.
  • A relevant injunction in relation to child abuse.
  • A court’s finding of fact.
  • A letter from the local authority stating your children are at risk of child abuse.
  • Evidence your children are subject to a Child Protection Plan.
  • An application for a protective injunction together with an application for a prohibited steps order.

Unless there is hard evidence of at least one of the above items legal aid will not be granted.

Due to government budget cuts it is now much harder to obtain legal aid than it was 5 years ago. The majority of law firms no longer offer legal aid for private family law disputes, and so many of society’s most vulnerable now go unrepresented. Failing to qualify for legal aid, yet not having the funds to pay their legal fees privately, many people are now forced to represent themselves at court, so greatly diminishing their chances of success.

Bretherton Law has been serving the people of Hertfordshire for over 50 years, and we are proud to support the more vulnerable members of society by continuing to offer legal aid for private family matters. Call us on 01727 869293 or use the contact form below for honest, professional advice from our experienced Family Law team.

 

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