The short answer is yes. But what might seem like a financial saving at the time could cost you more in the long run. Divorce, including the financial aspects, is a complex legal process. Individuals who represent themselves will often be at a disadvantage compared with a spouse who is represented by a family law solicitor or barrister. And just because you represent yourself does not mean it’s any easier to appeal the terms of an unsatisfactory settlement or court order than if you had obtained legal advice.
Why Do Some People Represent Themselves?
Of course many people going through a divorce don’t have any choice about legal representation. They simply can’t afford it. And in recent years there has been a significant increase in the number of people who represent themselves in divorce proceedings (‘litigants in person’). This is in part down to a recent reduction in the legal aid budget that has resulted in very few divorcing couples being eligible for financial assistance for legal representation in family cases.
The country’s most senior family law judge, Sir Andrew McFarlane has warned recently that the influx of “litigants in person” has on occasion exposed district judges to the fury of unrepresented and “emotionally charged” claimants. He indicated that the number of cases reaching the family courts has, for no discernible reason, increased substantially since 2016 and there are no indications of a leveling off in the volume of disputes.
It’s also worth pointing out that the amount of litigants in person is not just down to legal aid cuts. At Brookman Solicitors in London we often see instances where there are substantial matrimonial assets but one party is forced to represent themselves because they have no access to funds to pay for legal fees up front. We therefore discuss possible financing options below.
How Do Judges Treat Litigants In Person?
We are aware of situations where highly experienced lawyers represent one party while the other represents him or herself. In such cases the judge must strike a balance. On the one hand he or she must ensure the process is fair. On the other the judge can’t be seen to become involved in the case in a way that might be interpreted as unfairly favouring the unrepresented party.
Crowther v Crowther
This tension has been demonstrated recently by the Court of Appeal decision in Crowther v Crowther. There, at the contested financial hearing in the District court the husband was represented by an experienced barrister while the wife represented herself. When it came to the wife’s turn to question her husband the judge indicated that he wished to raise some matters with the husband first. He then questioned the husband in some detail before indicating that the wife could ask her own questions.
During his questioning the judge raised an issue about the husband’s ability to live on his own (the husband was physically disabled and vulnerable from a mental health perspective). His future accommodation requirements would clearly have a bearing on the final financial settlement. In its decision the Court of Appeal found that the judge’s questioning along these lines was unfair to the husband. The future living arrangements issue had never been part of the wife’s case so the husband had no prior warning that the issue would be raised. He therefore had no opportunity to present arguments in relation to it.
The case is now going to be reheard in full.
In an interesting remark the Court of Appeal summed up the delicate position of judges in cases where litigants in person appear as follows:
“..the requirement for the court to achieve a fair process by assisting the litigant in person almost inevitably draws the judge into the role of inquisitor, albeit on behalf of the litigant. It is a difficult line to tread..”
How We Can Help
We’ve worked in the family and divorce arena for long enough to appreciate the financial demands the divorce process can place on finances – even in relatively well off households. Many people come to us with concerns about paying for legal advice and in our view it is always best to get the best legal advice possible. Paying for sub standard advice or representing yourself can end up costing more because of the poor settlement you end up with. While you may be given some leeway by a judge in the course of a hearing this will be very limited as the Crowther case referred to above illustrates.
If you don’t have available funds you could consider a short-term loan from friends or family or your solicitor may be willing to enter into a Sears Tooth agreement where a proportion of your final settlement is set aside to meet legal fees.