Legal Aid Update

In July 2012, we told you about the impending demise of legal aid.

Well, we had written to Simon Wright MP in April 2012 about our concerns that the impact that the loss of legal aid would have on constituents. We recently received a reply from him, attaching a letter from Jonathan Djanogly MP, Parliamentary Under-Secretary for the State for Justice. You can read our letter and the reply here. We will let you come to your own conclusions!

Kernott & Jones – A Cautionary Tale

Kernott & Jones – A Cautionary Tale

The story of Kernott and Jones is one that should be heard by all cohabiting couples, but sadly it is not a great love story, but rather a salutary tale. 

"This is a cautionary tale, which all unmarried couples who are contemplating the purchase of residential property as their home, and all solicitors who advise them, should study." So said Lord Justice Wall, introducing his judgment in Kernott v Jones [2010] EWCA Civ 578.

The case involved Mr Kernott and Ms Jones, who entered into a relationship in 1980 and began cohabitating in 1983. They bought a home together jointly in 1985.  They separated in October 1993 and Mr Kernott moved out of the family home. Ms Jones remained there with their children.

There was some discussion between the two of them in October 1995, when Mr Kernott wished to realise his share in the property, and it was placed on the market for sale. However, as there was no interest in it, Mr Kernott and Ms Jones agreed to cash in a joint life insurance policy so that Mr Kernott could use his half of the proceeds to purchase an alternative home.

The question which came before the Courts some 15 years later, was whether Mr Kernott could still rightly demand a 50% share of the jointly owned home, despite not having contributed to it for 15 years.

You may be surprised to learn that when a property is purchased together, if there is an express declaration (a note on the legal paperwork that states whether you own the property as joint tenants or tenants in common) then the legal starting point is that you are bound by this declaration, regardless of how many years have passed. 

In the case of Kernott & Jones, there was no express declaration and therefore the question before the Court was, “In the absence of an express declaration, can the parties move away from the presumption that the property was held equally?”

Ms Jones was arguing that she should receive a larger share, as she had been solely responsible for the mortgage and maintenance of the property for 15 years.

The Supreme Court has now confirmed that while there is a presumption that a property should be held equally if it is in joint ownership, this can be overturned if evidence can be provided to show that this was not what the parties intended.

To show this, you need to prove that there has been a change of agreement between the parties as to the interests each of them have in the property, either by express agreement (both of you agreed verbally or in writing) or by proving that you can infer such a change by looking at how you both acted.

In the case of Kernott & Jones, cashing the life insurance policy to enable an alternative home to be purchased and Mr Kernott no longer financially contributing to the property provided the evidence required for the court to infer a change to the original agreement.

If it can be shown that the intention has changed, then there may be scope to move away from a 50:50 division. In this case, Ms Jones was awarded a 90% interest in the property.

This case highlights the importance of agreeing with your partner how a property is to be dealt with, both at the outset when you buy it, and later following a separation. It would be unwise to assume that you will be entitled to a larger share just because you have made a greater contribution to the mortgage and the upkeep of the home. The onus will be on you to supply evidence to prove this. 

If you are contemplating separation, discuss the terms with your partner at the earliest opportunity. A Separation Agreement can be drawn up to record the terms agreed, providing certainty and protection for both parties.

If you are contemplating setting up home with your partner, make sure you discuss what should happen if you separate. Cohabitation Agreements (also known as Living Together Agreements) can be drawn up to record responsibilities during the relationship, and determine what will happen with the family home, finances, furniture and any other assets, should the relationship break down. Family Law Consultancy can provide advice and assistance on these matters.

FLC receives quality service accolade

Family Law Consultancy was awarded the Law Society of England and Wales’ prestigious Lexcel accreditation after being independently assessed against high standards of management practice and customer care.

Stephanie Walmsley, Director at FLC said:

“By securing Lexcel we are sending a clear message - that we meet international standards of customer care and service within legal practice. Having Lexcel under our belts says we are a law firm with a reputation for quality. Quality marks bring value to both the clients and the employees of law firms, and during these difficult economic times, firms need to stand out with the particular strengths and benefits they offer.”

To gain and retain Lexcel accreditation, practices must undergo a rigorous initial application and assessment process, which is then repeated annually. This includes conducting suitability checks and an on-site assessment.

 John Wotton, President of the Law Society of England and Wales, says, “Achieving Lexcel accreditation proves a serious commitment to the continual development of the practice's management standards. By implementing policies, plans and procedures within Lexcel's key areas, such as client service and risk management, practices can show the positive steps they are taking to help clients in the increasingly diverse, complicated and competitive legal market. Lexcel acts as a beacon of quality to clients and potential clients alike.”

The Fight Against LASPO Continues

Despite The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) having gained Royal Assent on 1 May this year, legal groups have vowed to press on with their fight against the legal aid cuts.

Legal Action Group (LAG) director Steve Hynes said campaign work could focus on s 92 of LASPO, which gives the government discretion to bring areas of the law back into scope. It could be used, for example, to re-instate legal aid for family law if the family courts were unable to cope. Hynes says, “It is a misconceived and unjust piece of legislation and we will be continuing to campaign against it.” He says LAG plans to “make it an election issue” for the 2015 general election.

Lord Bach, the peer who led Labour’s opposition to LASPO, stepped down as shadow legal aid minister just a couple of days before the measure received royal assent. He condemned the act, which seeks to save £350m a year by cutting legal aid scope and eligibility, as “outrageous legislation”’ that will harm the “disabled, poor and vulnerable, and those least able to defend themselves”.

The act removes legal aid for vast areas of law, including most private family work, welfare benefits, housing, debt, employment and clinical negligence. In passionate speeches against the bill, Bach called the cuts, “ludicrous”, “counter-productive”, “immoral” and “wicked”.

Bach took to social media site Twitter to campaign against the bill, styling himself with the appropriate handle @FightBach. He can barely disguise his anger at the way the cuts have been made, saying, “If it was done at a time of plenty it would be bad enough, but to be done at a time of austerity is absolutely shocking”. What is particularly insidious about the legislation, he says, is that it works to the government’s advantage, denying people the chance to get the help they need to challenge decisions made by arms of the state.

With the passing of the act, Bach says the British justice system, admired throughout the world, has lost something “very precious”, by denying its open citizens access to justice. “It’s all very well and a good thing having Russian multi-millionaires fighting their cases in London courts, but what a contrast to taking out of our justice system the poorest and the most vulnerable”.

The government lost 14 votes in the House of Lords, the second biggest rebellion in parliamentary history. Lord Bach commends those within parliament and campaigners outside who fought to oppose the bill, praising the Law Society’s ‘first class’ campaign. He pays particular tribute to his colleague, Lady Scotland, for her efforts to ensure that legal aid remained available for more victims of domestic violence than the bill originally covered.

With the removal of funding for social welfare law, Bach is concerned about the future of law centres and Citizens Advice. He laments, “You’ll find that many will close down or take on different forms than they have now”.

Pledging his support, he says: ‘The not-for-profit sector is entitled to do all it can to survive the next few years, until hopefully happier times come again. If that involves them doing things they wouldn’t really want to do, but so they can stay alive and help the people, they will have my personal support”.

Likewise, he recognises the work done by legal aid solicitors in private practice and accepts that the bill will make it hard for some to continue. “It’ll be a crying shame if they find themselves unable to do this work. They too must find ways to survive by cross subsidy or whatever.”

Lord Bach says of himself, “I’m a dangerous person - I’m a convert to social welfare law,” admitting only a ‘negligible’ awareness of social welfare law while he was a practicing barrister himself. “It was only when coming into the job that I realised how crucial it is”.

His epiphany, he says, came after being given “a really hard time” at the Law Centres’ Federation annual meeting in Birmingham. More seriously, he adds, “It was just seeing the kind of work done on really small amounts of legal aid money to change people’s lives. That’s what changed me. After that I was absolutely convinced that if you were going to have a decent legal aid system you need a proper component that looked after civil legal aid”.

Bach says he intended to leave the front bench some time ago, but was determined not to go before this bill made its way through parliament. From now on he says, he hopes to play some part in working with the not for profit sector and with legal aid solicitors, to see how they can survive for the next few years, as well as helping his party build up an enduring social welfare law policy.

No More Legal Aid? - Family lawyers warn of the devastating impact of legal aid changes

The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) is now on the statute books, having gained Royal Assent on 1 May this year.

As a consequence, Legal Aid will cease to be available for many areas of family and civil law from April 2013.

At the end of last year, the family lawyers’ group, Resolution, surveyed its 6000 members who undertake legal aid work to discover the true impact of the proposals on families and children. The vast majority (87%) said that LASPO would mean that less than 25% of people they currently help would still qualify for legal aid.

The social implications are considerable: the survey also found that 57% believe a parent risks losing contact with their child in at least half of their cases. Based on the surveyed lawyers alone, this represents well over 4,000 children.

LASPO would also withdraw legal aid from many parents trying to get back children who have been abducted within the UK, even though 91% of those surveyed believe there is a risk of abduction in at least some of their cases.

“It is clear that the Government’s legal aid cuts could bring devastating consequences. Many of those currently eligible for legal aid would seriously struggle to obtain the legal advice and support that could ensure that they continue to see their children after a difficult separation”, said David Allison, Chair of Resolution.

“The changes also risk increasing the nation’s benefits bill. Many of our members say that the majority of their clients would not know what financial settlement they are entitled to, which could see them left dependent on the welfare state and benefits."

“Resolution is committed to the constructive resolution of issues arising from separation, through options such as mediation, and the organisation welcomes the Government’s desire to see fewer family cases going through the court system. However, there needs to be support for those for whom mediation is inappropriate, which, according to the survey, could be in as many as 40% of cases."

“We are concerned that, by focusing so heavily on mediation, the Government will punish those for whom it simply won’t work through no fault of their own – for example, if they have an abusive or uncooperative partner.”

The inevitable increase in people representing themselves in court (known as litigants in person) will add even more pressure on a court system that is facing the closure of 40% of courts and the loss of 15,000 jobs. In the experience of Resolution’s members, cases take longer when one party is representing themselves – nearly half (48%) said it takes more than twice as long.

A New Face at Family Law Consultancy

FLC welcomes new member of staff, Laura Wilson, to the team this month. Laura has been with the firm for a while in a temporary position, but we are pleased to say that she is now joining us as a permanent member of staff.

Laura’s role as a legal secretary and office assistant is an invaluable one in helping us take good care of our clients.  We hope she will continue to enjoy being part of the busy FLC team! 

CSA to charge single parents

The government is proposing to charge single parents who seek help from the CSA (Child Support Agency) to obtain maintenance for their children from the other parent.

On 1 February, the House of Commons voted to overturn a House of Lords’ amendment to the Welfare Reform Bill which was intended to prevent single parents being charged for child maintenance services, where they have no alternative but to use the statutory system to get financial support from the other parent. This is despite the fact that the amendment was overwhelmingly supported by the House of Lords, with 270 votes in favour of the amendment and just 128 against, inflicting the biggest defeat on the government since the election. 

During the debate, DWP Minister, Maria Miller, announced that the government would set the upfront application fee, which is payable by parents with care who seek the CSA’s help to obtain child maintenance, at £20 for all applicants. Originally, the government was proposing that the fee be £100, or £50 for those on benefits. This reduction is small comfort to those parents left with no option but to use the CSA, however, as they will still lose up to 12% of all payments collected by the CSA, and which are of course supposed to be for the benefit of their children

Kim Fellowes, who chairs the Child Support Committee of the family lawyers’ group, Resolution, said,

“There will be no incentive for a difficult non-resident parent to make a fair agreement – or any agreement at all – if they know their former partner cannot afford the CSA fees. For many single parents, the costs involved represent a significant sum of money, which means, coupled with the 7-12% collection fee, there is a real risk that they will lose what they are entitled to.

The CSA was designed to ensure non-resident parents were made to face up to their responsibilities; at the moment, there is a real chance that the government, despite its rhetoric, will let them off the hook.”

But Iain Duncan Smith, the work and pensions secretary, told the Andrew Marr show that the current system led to parents being "almost forced to be at each other's throats," and argued that the charges would lead to disputes over child maintenance being settled out of courts more often.

"If you have a relatively small charge, what happens is that people will think about it," said Duncan Smith, insisting that the proposals would be, "better for the children."

Whilst most other amendments to the Bill were passed by relatively small margins in the Lords, the CSA amendment to do away with the charges was overwhelmingly passed. Immediately after those votes, however, senior ministers in the Commons used a procedural committee to declare the Lords’ amendments invalid, relying on the somewhat archaic convention of “financial privilege”, which states that the Lords may not rule on financial matters.

Parliamentary convention has long stated that the Lords do not deliberate on ‘money’ Bills, such as the Budget, but such legislation is never introduced to the Lords in the first place.

What the government is doing here is declaring that the Welfare Reform Bill has financial implications which render the Lords exempt at this critical stage in proceedings. The most obvious question is why ministers have taken this view now, rather than months ago, at the first stages of the Bill.

It is inexplicable that the government should introduce a Bill to Parliament with the intention of it being considered by both Houses, only for it to declare the Bill beyond the auspices of the Lords at this relatively late stage.

Whether the Lords behind the key amendments to the Bill will be able to mount a cohesive defence against this is presently unclear, but it seems that the whole process could end up in a judicial review.

It is an issue of some magnitude; if the break with precedent is deemed to be legitimate, it could have implications for other major government bills going through the Lords, including the legal aid and NHS reform Bills, both of which are highly controversial.

We therefore eagerly await the Lords’ response to the government's declaration of financial privilege. 

Family Law Consultancy expands fixed fee and online services

For several years now, FLC has offered clients the option of paying a fixed fee for their divorce. Having found that this works well for our clients, we have expanded our fixed fee case options across all of our services, and we now hope to offer the vast majority of our clients the option of a fixed fee, whatever the nature of their case.

We believe that we are currently one of only a very few firms in the country offering the option of fixed fees across the full range of services. FLC Director, Robin Wide, says,

“It is about responding to client needs and that means being able to offer more certainty about costs. The majority of our clients, understandably, want to know how much their case will cost, so that they can manage their finances. We believe the option of a fixed fee provides reassurance at a time of great emotional upheaval.

We are also now offering fixed fee online services. Presently, the service covers online divorce, but we are looking to develop it to cover other types of case as well.”

To help clients budget, FLC also allows payment for most fixed fee cases to be made in spread installments and by standing order.

For further details, please click fixed feeoptions or online services.