These are worrying economic times and many individuals and families will be finding this year tougher than the last. Legal costs may be seen as a luxury rather than a necessity and there can be ample resources and advice online for family law. Some websites offer divorce packages at staggeringly low prices. There are books to buy, divorce packs in the supermarket, and even DNA testing kits can all be easily accessed. Who needs the lawyer’s help or that cost? There are however, some important thing to consider when deciding whether or not to take legal advice.
Legal advice is uniquely personal to you
No matter what the issue, having the opportunity to speak directly to a solicitor provides reassurance that what you want to do about your situation is feasible and appropriate to your own personal circumstances. It can be tempting to make your predicament suit or fit into what you might read online. As solicitors, we are trained to see the bigger picture, be analytical and do what is in your best interests. You make an informed choice once you have spoken to a legal professional.
Legal advice comes with safeguards
Be aware that some online providers of family law services are not solicitors or even based in tis country. This is not always clear from the websites and nor are the implications for the client in choosing this route.
In Scotland, for example, a divorce will only be granted by a court if the court is satisfied that there are no financial matters outstanding and either there are no children under 16 or affidavits (statements sworn on oath) are provided to the Court to support that the care arrangements for the children under 16 are such that there is no need for the Court to consider making any orders under the Children (Scotland) Act 1995. This may be orders for contact or residence or a specific aspect of a child’s life such as schooling or medical treatment.
Online services put the onus on you to confirm if your finances have been sorted out and ask you to complete questionnaires to set out the details of what the care arrangements might be for any children. There is no inquiry or actual discussion about any of your circumstances.
It might well be that you have reached a financial agreement but if you have not or you have not been aware of what such an agreement should and can include, then your financial agreement may not be a fair and reasonable one in terms of the Family Law (Scotland) Act 1985. This Act regulates what is matrimonial property and how it should be divided. If a decree of divorce is granted and you then subsequently want to look into the financial agreement you reached or thought you had reached, then it is effectively too late to do so. Reversing or reducing a decree of divorce is not straightforward, it is costly and ignorance of the law will not be a valid reason for looking at the financial position again.
Completing written questionnaires on the care arrangements for the children is really no substitute for speaking with a solicitor directly. The information taken from the questionnaire forms the basis of the affidavit that is effectively your evidence to the court in a written format. It is still sworn on oath which is the process completed with a Notary Public. Affidavits are solemn and formal documents. They are treated as such by the court and so it is an important part of the process that in drafting the affidavit the information or, really the evidence, is sound and satisfies the court that there is no need to make any order about contact or residence. This is for the Court to decide not how you might have answered a questionnaire. If the Court wishes to have more information or query what is contained in an affidavit or any supporting document lodged with the court, the Court can do so. This will mean that if you have not instructed a solicitor then you may be expected to speak to the sheriff or instruct a solicitor to do so on your behalf. Using an experienced solicitor will ensure that the affidavits are meaningful and the solicitor has had a fuller appreciation of your circumstances so that he or she is confident that the evidence being presented to the court in the affidavits will satisfy the court that decree should be granted. If the solicitor is not satisfied then he or she can give advice on why that is the case and how it might be remedied. The notarial process is a serious one. While a meeting with a notary may not take very long, just as some of the online providers suggest, a Notary may not be prepared to notarise an affidavit where he or she has not had any knowledge of the court action or parties and their circumstances.
Solicitors are a regulated profession. We have to have a current practicing certificate issued by the Law Society of Scotland to be able to provide legal advice. We operate under a strict Code of Conduct. If as solicitors we get something wrong, you can do something about it. You have recourse. Online providers, who are not solicitors, have no regulatory body or need to operate to the same strict standards. Bargain prices come at a cost and risk which may involve you having to instruct a solicitor in any event.
We see the bigger picture.
Your family law issue is unlikely to exist in isolation. You may need the help and support of other agencies. You might not realise this or feel confident enough to source that help alone. The benefit of using an experienced family solicitor is that he or she will know of agencies who might be able to help such as Womens Aid, counselling sevices, debt advice via CAB, substance or alcohol abuse advice. We can make that initial contact for you if you wish. We often work with other agencies and having that first hand knowledge of how other organisations can assist is invaluable to managing a better outcome for a client. Signposting to other services might even be what you need before you need any detailed legal advice and we will tell you that and who you should consider contacting. We treat relationship breakdown holistically just as it should be.
Going to court isn’t inevitable
There are certain connotations with using lawyers; creating a worry that a case will end up in court. This may be thanks to television drama, the media or other people’s experience and the benefit of their perceived wisdom. The reality is court action is absolutely the line of last resort. Yes it is needed to achieve a decree of divorce but most actions are undefended and do not involve you having to attend court. Getting to this stage is however the last rung in the ladder. Reaching a negotiated outcome is the priority for the family lawyer. Arguing is time consuming, emotionally draining, expensive and takes control out of your hands. We have a dedicated team of family law solicitors and accredited family law paralegals. 5 of our team are accredited by the Law Society of Scotland as specialists in this field. Our experience of how to apply the law and gauging the best realistic outcome for you will mean that a cost effective and pragmatic course of action will be recommended to you. Most of our work is based on achieving negotiated outcomes. This is commonly known as conventional negotiation. We strongly support alternative dispute resolution methods (ADR) such as mediation for child contact disputes. Some of our team are trained in collaborative practice which is a process that encourages parties to look at the outcomes they want to achieve for the benefit of the family rather than taking a position on what they may be entitled to. Our day to day practice benefits hugely from our ADR experience and ethos.
So please don’t rule out seeking advice because you anticipate costly court action. Taking early advice, making informed choices and taking decisions with confidence using a solicitor who is obliged to act in your best interests is worth the cost of not cutting the corners.
Taking the first step to get the right legal advice for you.
Angela Wipat is a specialist Family Law Solicitor, Accredited by the Law Society of Scotland. If you have questions about separation, divorce or child related issue, call Angela on 03330 430150 or a member of Thorntons Family Law team for an initial no obligation discussion. We can point you in the right direction, give an indication of costs and how we might be able to help you.
