District Judge Gerlis has recently written a piece for The Times setting out his ten reasons why representing yourself in a divorce might not be the best idea. No doubt inspired by Heather Mills’ decision to run her own case, I think we’d all agree that where such large sums of money are at stake its probably a false economy to skimp on the legal team (although of course we don’t in fact know whether it was she or her former solicitors who made the decision that it was time to part ways, and in reality the reason behind the decision was likely to have been for reasons other than the financial and possibly due to a breakdown in relations between Ms Mills and her lawyers).
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Whilst I don’t disagree with the general proposition that its usually best to get yourself some representation, I’d like to approach the issue of litigants in person from a different perspective. Clearly there are all sorts of reasons why it is often better to be represented in court, rather than making a bad fist of it yourself. And of course far be it from me to suggest that we barristers are an unecessary expense. We are of course excellent value for money (ask my bank manager or my husband, who no doubt thinks we offer far too much value for far too little money)!
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In contrast with the learned district judge, I don’t think its all doom and gloom if you can’t afford representation or if you decide to go it alone. And I also don’t think that all judges would recommend the expense of a lawyer for all parties in all divorce cases.
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In my experience most judges are extremely sympathetic to litigants in person and will make efforts to ensure that there is a level playing field between the parties, explaining the process as the case goes along and making allowances for someone who is inexperienced or nervous. Judges are used to litigants in person and part of widely good practice that is for judges to take proactive steps to ensure this fairness as between represented and unrepresented litigants.
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Indeed in some cases this can work in favour of a litigant in person who is given the benefit of the doubt where the poor lawyer on the other side is assumed to be poised to pull some dastardly underhand trick on the poor litigant without compunction as soon as the judge’s back is turned. Many is the time that I have been kept on a very short leash in a case with a litigant in person on the other side and prevented from making points or acting in a way that would ordinarily be considered quite acceptable – there is a danger that judges view litigants in person as requiring the protection of the court and for some reason in those circumstances any idea that barristers can be trusted to act fairly and honestly goes out of the window. This is often to the litigant in person’s advantage, and I’m afraid in a not insignificant number of cases is used quite skillfully to the advantage of the savvy litigant in person – we all dread dealing with the litigant in person who has got wise to this and is prepared to ‘try it on’.
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Which brings me to my next point: litigants in person are as varied as litigants in general. Some are inarticulate and unable to grasp what is going on, whilst others are extremely intelligent, educated and competent. And a small number are underhand, dishonest and prepared to manipulate the court. A wise judge will spot this, an over indulgent judge will not. It can sometimes be more difficult acting against a litigant in person than against another lawyer.
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In fact of course barristers are under a special duty to act fairly to litigants in person. Understandably litigants in person find it very hard to trust what their ex-spouse’s lawyer is telling them and think its some kind of a trick, we are bound under the Code of Conduct not to mislead a litigant in person and indeed to do so would potentially undermine any order we later secured on behalf of our client. Barristers spend a considerable amount of time at court explaining what is happening to the other party to ensure that there is a level playing field. It is often helps for the judge to explain this special duty to both parties in court so that they feel able to engage in constructive discussions with the lawyer in the case, but this doesn’t happen often enough.
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District Judge Gerlis says ‘Being on your own can send out all the wrong signals: that you’re not taking the matter seriously, determined to be obstructive, penny-pinching, unwilling to compromise, just downright difficult. Is this really the impression you want the court to have?‘ But for the reasons I’ve set out above I don’t think this is in fact the signal picked up by all judges in all cases. For most it is a daily occurrence.
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In most cases there is a lot of paperwork and a lot of law to understand, and reading the newspapers will probably give you a misleading and confused idea of how things work. But at the end of the day if you want to go it alone and you think you can handle it – go for it. It will undoubtedly save you money. Where this up front saving can be a false economy is this: you may be able to competently argue for a fair outcome in your case, but what you will find almost impossible to do is to reach an objective view about what that outcome is likely to be unless you take legal advice. If you don’t have a lawyer you will probably not predict the outcome correctly and you may be very disappointed with that outcome if its not what you expected. And if the order the the judge makes is significantly different from the one you expected all of your finely laid plans for that new house will be out of the window. Although lawyers can’t always get you the outcome you want, if you involve them early on in a case they can identify the weaknesses in your case and help you work out how best to tackle them so that you have the best chance of getting the outcome you want or at least of getting as close to it as is possible.
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If you go it alone don’t despair. Most judges are extremely patient. Be polite to the judge (call them Sir / Madam, apologise if you interrupt in the wrong place) and you will usually get politeness in return. Make sure to tell the judge if you don’t understand what is happening or if you don’t understand the legal jargon. Ask him or her to slow down if things are going too quickly. Most judges will be courteous and helpful.
I meant to comment on this earlier. Having witnessed many LIPs mistakes personally I wouldn’t recommend it in all but the simplest of cases and agree with much of what District Judge Gerlis said. It was unfortunate that the way he said it antagonised many people and I think they would be more likely to heed your advice.
No I can’t say I would recommend it as a preferred option, but its not impossible to do your own case. And we lawyers are not quite as indispensable as we like to think (in some cases at least).
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Who pays the legal costs of the financial hearing in a divorce, does each party pay their own costs?
@Lizzie the general rule is that you can expect to pay all of your own costs in connection with divorce and ancillary relief. Usually one person will only be ordered to pay the other person’s costs if they have behaved very badly within the case itself (being a sh*tty husband / wife isn’t enough!), for example by pursuing a completely nutty issue and running up unecessary costs doing it. You cannot bank on anyone else paying your costs for you at the end of the day.
Thank you, I am having to handle my divorde myself but had been told that if I make an offer to my husband which is then beaten in court I would have to pay his costs
@lizzie – I can’t advise about your specific case, and at any rate it sounds as if you may have been given some advice already, however what you are describing sounds very much like ‘old rules’ costs when the decision about who paid the costs of ancillary relief (the financial side of divorce) depended largely upon who had made the most sensible offer prior to the trial (often called a ‘calderbank’). This scheme has now been abolished, but it does still exist for some older cases for example a case which is still ongoing but where the divorce petition pre-dated the rules change (as of April 2006). An ‘old rules’ case might still be decided in the way you describe although since the rules have changed the ethos is very much towards ‘no order for costs’.
@familoo, thank you for this post, even though I realise that, five years on, this comment may remain unread.
My estranged wife, in receipt of Legal Aid, has strung out our divorce, after a short and farcical marriage, into its fourth year at a cost to me thus far well in excess of ten thousand pounds in legal fees, demanding half the house (which I’d owned for 13 years before we ever met and which I alone had paid for) and £50,000 cash in compensation for non-existent assets she falsely claimed she brought to the marriage, even though she brought not a penny. She has consistently–and provably–lied in legal documents (including Form E), making false claims such as that I was unemployed and she supported me (it was in fact I who was employed and supporting her). And yet all I’ve heard from other solicitors is that I cannot expect to emerge ‘unscathed’.
You post, in its advice and its cautions, has given me the courage to let go of my solicitor and to henceforth represent myself.
Hi, thanks for the article. I’m unemployed and I’m getting divorced. I haven’t got any representation yet as it’s all been peaches and cream for the most part but recently my ex is making unfair demands and is preventing me from spending quality time with my children. I’ve just discovered that legal aid has stopped for family law cases and I’m now forced to represent myself.
I’m absolutely petrified and worried that my finacial situation will hamper my relationship with my children. I’m contacting cafcas to see if they can help with an agreement which will hold a lot of weight in court(I think?).
CAFCASS won’t get involved until there is a court application. You could try mediation. There is legal aid for that. Or try my book Family Courts without a Lawyer (see http://www.nofamilylawyer.co.uk). If you do have to go to court (lets hope not) you can represent yourself if you cannot afford a lawyer.
I have spent the past two years and spent over £10,000 on two solicitors. Neither advised me on what the potential outcome could be and it took the judge at the first hearing to point out that there really wasn’t enough money at stake to justify prolonging this case. He advised that we would be better off negotiating a settlement between ourselves. Neither my solicitors or my wifes advised us in this way. Instead they were content to allow us to continually pay them rather than actually help. Whereas I understand lawyers need to earn a living, but, like so many others, this experience will leave me with a permanent distrust of the legal profession.
Sorry to hear that Sean. I don’t know what happened in your case, but it’s worth remembering that it is part of the judge’s job at certain hearings to give you both a good shake up about how much of your collective money you are throwing away on lawyers so that part isn’t surprising. It may be that in the period running up to that hearing your lawyers couldn’t advise you to settle because they were still gathering the evidence needed to give you proper advice, but that it had become clear by the time of the hearing – which is exactly how it is designed to be on one level. the idea of such hearings is to put you in a position where you can reach a sensible agreement and avoid further cost. Anyway, I’m glad you did ultimately sorted things out (I think).
Sorry to hear that Sean. I don’t know what happened in your case, but it’s worth remembering that it is part of the judge’s job at certain hearings to give you both a good shake up about how much of your collective money you are throwing away on lawyers so that part isn’t surprising. It may be that in the period running up to that hearing your lawyers couldn’t advise you to settle because they were still gathering the evidence needed to give you proper advice, but that it had become clear by the time of the hearing – which is exactly how it is designed to be on one level. the idea of such hearings is to put you in a position where you can reach a sensible agreement and avoid further cost. Anyway, I’m glad you did ultimately sort things out (I think).