More about the financial implications of divorce. What can happen during marriage breakdown when one partners is legally aided and the apparent unfairnesses that can result.
Legal aid and the divorce process
A non working wife, despite having no income of her own and money from the Legal Services Commission to pay her bills can be at a clear advantage over her working husband in the divorce process. However, if she recovers funds or property whilst she is legally aided, the money which they – that is the Legal Services Commission - has spent can be recovered by placing a charge on the property which will be reclaimed if the property is sold.
She could repay this money by mortgaging or re-mortgaging the house. The wife's divorce solicitor cannot lose in either instance as they will get their money from government coffers come what may.
Costs of divorce
The final nail in the coffin for the beleaguered husband of a legally aided wife getting divorced is that costs cannot usually be awarded against a legally aided person unless the court can be 'satisfied that the unassisted party will suffer severe financial hardship unless the order is made' and also that 'the court is satisfied that it is just and equitable in all the circumstances of the case that provision for the costs should be made out of public funds '(Legal Aid Act 1988).
In reality it is very unusual for both of these conditions to be fulfilled because this rule is really only in existence to save public funds. In practical terms it means that the legally aided party in a divorce – usually the wife – can pursue her case without any real fear of having to pay costs even if she is unsuccessful.
This obviously places a non legally aided husband at a massive disadvantage when confronted by a legally aided wife making unreasonable demands about the finance after divorce. Expert financial advice from a qualified Independent Financial Adviser could help in all aspects of divorce finance. If the husband then loses the case and it is decided that his proposals to settle were unreasonable, then his wife's divorce solicitor will ask for, and almost certainly get, an order for her husband to pay the costs of the Legal Services Commission.
Many men come from the divorce process reflecting upon the injustice of a system that is so often weighted against them. We have a self help kit on divorce which is very useful in providing information on the whole divorce process and how you can carry out a lot of the work yourself.