Free ain’t easy

Lawontheweb describe themselves as “the UK’s legal information website”. They are a referral website. They also offer free legal advice. Which is nice of them.

There has been a certain amount of scrutiny of the quality of that legal advice recently, most notably in the area of housing law, by Nearly Legal. I had briefly perused the lawontheweb offering before and had been underwhelmed, but Nearly Legal’s post was concerning enough for me to go back and take a look at their family law offering (I know nothing about housing law, so I operate on the basis that what he says about housing law is correct). By way of background, and rather than repeat what Nearly Legal has already written, may I suggest that you read his two excellent posts:

On the Naughty Step Part 1 : Geeks Bearing Gifts (not about Lawontheweb but part of the industry background)

On the Naughty Step Part 2 : The Cost of Free

So, back to lawontheweb and its family law offering.

There are several different descriptions of the divorce process on the site. Most are broadly accurate but all are slightly differently worded. In one rather poetically titled item : “Divorce – When Souls Diverge“, we are first treated to a tactful little vignette of social breakdown before we get to the cold hard law:

Despite what you will hear from various doom mongers about the imminent collapse of our society and the fact that everyone is getting divorced and there will soon be packs of feral children picking through our bins, the divorce rate in the UK has actually been falling in recent years.

So you see dear reader. Not everyone is such a big relationship failure as you are. But Don’t feel bad. We can tell you all about divorce. (They don’t say that last bit about failures obviously, that’s me being sardonic, but they do go on to explain the law for those who choose to contribute to social breakdown:).

The reason why divorce in the UK is a relatively simple concept is because there is only one ground for divorcing your partner; the marriage must have irreversibly broken down. To give evidence of this complete breakdown in marital relations, one spouse must give written evidenced of one of the following:

  • Unreasonable behaviour
  • Adultery
  • Desertion for a period of up to two years
  • Separation for a period of up to two years
  • Separation of a period of up to five years

[typos in original]

Looks alright if you read it fast, squint whilst doing so and say “blah” every third word. But read it slowly. Divorce in the UK is so simple that they’ve got the terminology wrong. That’s irretrievable not irreversible. It matters not that the words sound similar and have similar meanings. Those offering advice should demonstrably take care about the accuracy of their advice. So when they say you can get divorced if you prove separation for a period of up to two years. You can’t. When they say “up to” they mean “at least”. What self respecting lawyer would commit such heinous drafting errors? Would you take advice from them?

Under “Financial Settlement” they say,

On divorce or separation all of your assets and those of your spouse are regarded as matrimonial assets and are in the melting pot when looking at what is a reasonable financial settlement for both of you.

Er, except when that’s not the case, obviously (exceptions not mentioned by lawontheweb).

If the parties arrive at an amicable agreement, a Consent Order can be drawn up by a solicitor, which merely needs to be rubber stamped by a judge.

Ouch. Don’t let the court hear you describing the process as a rubber stamp. The Court of Appeal is pretty clear they aren’t a rubber stamp. Thankfully, the advice then goes on to demonstrate why the term “rubber stamp” isn’t actually accurate. This might be confusing to a punter, but ultimately not a massive big deal in the grand scheme of things.

Moving on to cases where a financial settlement isn’t agreed, they say:

When coming to a final Order the court will simply try to be fair to both parties and there are a number of factors which they take into account (see Section 25 of the Matrimonial Causes Act 1973).

These include:

  • duration of the marriage
  • the age of the couple
  • contributions during the marriage
  • pensions and loss of widow’s benefits
  • the financial resources of each spouse
  • the needs of each spouse

Notably absent from this purported summary of s25 is the welfare of any minor child, income and earning capacity etc, financial obligations and responsibilities now and in the future, or disability, whilst the oddly specific “pensions and loss of widow’s benefits” is imported into s25 (although s25 includes loss of benefits which would include loss of widow’s benefits, this specific item is not on the list). I can’t really understand why such a point of detail might be included in a summary of s25 where other more overarching and commonly important issues are simply and inexplicably absent.

The advice does go on to say that “It is usually worth making a list of all the assets, debts, liabilities, income etc of you both and then speaking with a solicitor, so that you can negotiate from a position of strength and knowledge.” as if this is merely a good idea rather than a core requirement of the process. Again, not wrong, but probably not the most helpful exposition of the procedure.

The reader is then told thatIt is always best to come to an agreement amicably if possible, especially for the benefit of any children that may be involved.” – what does that sentence even mean? Always if possible. Definitely maybe. Legally blonde.

On the types of orders that can be made:

The court can make orders for:

  • maintenance for the husband or wife
  • maintenance for children
  • a lump sum for the husband or wife
  • a ‘property adjustment’ or ‘transfer of property’ order
  • sharing or claiming on the other’s pension fund — this could involve having a share of the fund now so that you get a pension fund of your own, or having a payment out of it.

Er, order for sale anyone? In fairness it is mentioned later, but why not here? Similarly no explanation of the limitation on child maintenance orders is given until later. Not wrong, but not the best either.

On Children and Divorce:

Mediation may be required if it is not possible to get in contact with one of the parents. The process involves parents having a series of meetings with a trained mediator to establish a childcare agreement which both parties are happy with.

No, I didn’t understand what the first sentence meant either (if it is not possible to get in contact with one of the parents it’s going to be pretty difficult to mediate, no?), so I just carried on reading…

If an agreement can’t be made then one of the parties will have to apply to the court for contact or residence orders. They will then have to attend a hearing where the court will assess what should happen next, and a Children and Family Court Advisory Support Service Officer will try to determine whether an agreement can be made through mediation. If an agreement can still not be made, the next step involves a final hearing where both parties and their witnesses are questioned by the court. Once all evidence has been heard the court will make a decision as to what orders to make and the reasons behind this decision. 

This makes it sound as if mediation is routinely part of the court process itself, and run by CAFCASS. It isn’t. It makes it sound as if court proceedings will move immediately from “try and sort it out by mediation at the first hearing” to “final decision” quicker than you can say “Pie in the Sky”.

Worthy of note, but only for it’s intriguing title, is an enigmatic section entitled “Separation and Nuptial Corruption” – don’t bother. It sounds more interesting than it is.

This is where I started to find things that were actually wrong wrong. On Parental Responsibility we get this:

If the parents of a child are unmarried, then only the mother has any automatic rights in respect of the child. She alone will have parental responsibility for the child, which covers all aspects of his/her welfare and upbringing. However, since 1 December 2003 (s111 of the Adoption & Children Act 2002) it is now easier for an unmarried father to acquire similar rights. All he needs to do is to register the birth of the child with the mother.

An unmarried father can also acquire joint parental responsibility or in extreme circumstances sole parental responsibility, if the parents have entered into a Parental Responsibility Agreement (see below). Fathers can also apply to the court in order to obtain an order.

The father can apply to the court for joint parental responsibility, a residence order (i.e. that the child live with him rather than his/her mother), or for a contact order (i.e. that he should be entitled to see his child on a regular basis). 

If an unmarried couple splits up, the mother will automatically have the right to look after her child in a manner and place as she sees fit, and the father will not be able to challenge her unless they entered into a Parental Responsibility Agreement or he has a court order in his favour. 

What is implied, but oddly absent, is confirmation of the fact that all married fathers have PR – and to me the phrasing of when an unmarried father will acquire PR is rather unfortunate. He will automatically have PR as long as he is on the birth certificate (except for children born before Dec 03). What is absolutely wrong is the suggestion in this passage that a mother’s PR can ever be removed. A mother’s PR can only be removed by adoption. It cannot be revoked on the application of the father. Ever.

This section is also unhelpful in giving the impression that a father without PR is effectively powerless. He is not. He is still the father and has rights in relation to his child, in particular the right to seek orders under s8 Children Act 1989.

In his review of the Housing advice Nearly Legal identified a number of aspects of the guidance which he says were actually wrong. Comparatively speaking, there is not that much in the family law section that is obviously wrong (although Scots lawyers might raise an eyebrow at the complete failure to note that Scotland is a separate legal jurisdiction as obvious – the site tagline purports to be a UK resource but as far as I can tell the family law advice all relates to English / Welsh law).

Lawontheweb may have got more wrong were it not for the fact that the family law content doesn’t really say very much about the law in the first place. In comparison with the housing content, the family law guidance is less wrong than it is devoid of useful substance, and is often poorly drafted or sequenced in such a way as to run the risk of confusing a punter. Apart from the examples given above I particularly liked this passage in a post by someone called Melanie Kilgour, just jam packed full of snigger worthy gaffs and non-statements:

Because of the sensitivity of the areas within family law, any issue that needs to be heard in court; is done so in a family court. The family court is specifically designed to make orders that relate to family law. For example, if two parents were separating and they cannot come to an agreement on the custody of their children, they can apply to the courts family of law for a hearing. The courts would be able to make an informed decision as to who gets residency of the child and visiting rights etc.

[errors in original]

Now I know from bitter experience that writing about law in jargon free language whilst remaining legally accurate is a craft that requires precision and careful judgment. It isn’t actually all that easy to knock up a bit of generic free legal advice. But. The fact remains there is little point in doing it if you aren’t going to do it well.

I don’t know who is responsible for writing the content on this site and I don’t know what their legal qualifications are (they don’t say). And I don’t know who within the organisation is responsible for the quality control (but it appears that because the website is a referral business it is not regulated by the regulatory bodies that protect consumers of legal services, hence external regulation is probably limited). I’m not sure whether it would be more depressing to find out that a lawyer wrote this, as opposed to a non-lawyer. Whatever the truth this website gives a pretty good impression of being more about SEO and link-baiting than about real public legal information or access to justice. If they were really genuine about their raison d’etre I’d have hoped they would have responded to communication from a number of us in the legal blogging community some months ago. What a shame they did not.

POSTSCRIPT Since publication at 2pm some of the material referred to above has been amended (e.g. the incorrect reference to “up to 2 years”). I have screen grabs of the originals. Giles Peaker (Nearly Legal) has noted on the Guardian version of his article that some amendments have also been made to the housing law sections.

One thought on “Free ain’t easy

  1. […] Reed on Pink Tape does a similar hatchet job on several of their family law […]

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