Form A where do you find one, who fills it in and what does it do?

Form A

In a nutshell, Form A is the form that needs to be filled in to apply for a financial remedy in a divorce. It ‘s a standard court form and can be downloaded from the court website here.

This is what it looks like. Its official title is a notice of (intention to proceed with) an application for a financial order.

Form A

Is there a separate form A for a financial remedy order by consent (a consent order)?

No.

The same form is used whether you are applying for an order by consent or not.

Form A and MIAM

Over the years the Form A has evolved from a single page form to a 10 page form. This is because all applicants for a financial remedy on divorce now need to attend a MIAM (mediation information and assessment meeting) unless they are either:

  • exempt; or
  • the terms of their application and the order being sought are agreed (this is known as an application for a consent order).

The extra pages now contain numerous questions about mediation or the reasons you are exempt from the requirement to attend a MIAM, such as being in a violent relationship. Continue reading “Form A where do you find one, who fills it in and what does it do?”

Child Maintenance and Consent Orders – the 12 month rule

I was asked a couple of weeks ago to point out where the “12 month rule” can be found in the various legislation relating to child maintenance on divorce or separation for those parents who are not married.

First of all what is the 12 month rule?

The rule is that where the court has made an order for child maintenance (which can only be made by courts now in limited circumstances) either party can opt out after 12 months.

The rule can now be found in the Child Support Act 1991. Section 4 of that Act was amended by the Child Support and Pensions Act 2000 as follows:

Applications under section 4 of the Child Support Act 1991.

(1)In section 4 of the 1991 Act (child support maintenance), subsection (10) shall be amended as follows.
(2)In paragraph (a), after “maintenance order” there shall be inserted “made before a prescribed date”.
(3)After paragraph (a), there shall be inserted—
“(aa)a maintenance order made on or after the date prescribed for the purposes of paragraph (a) is in force in respect of them, but has been so for less than the period of one year beginning with the date on which it was made; or”.

What is the prescribed date?

The “prescribed date” can be found in the “The Child Support (Applications: Prescribed Date) Regulations 2003″ and it is 3rd March 2003.

What does all that mean?

In a nutshell if your consent order contained an agreed order for child maintenance and was made before 3rd March 2003 you cannot opt out after 12 months and if your order was made after 3rd March 2003 you can.

So if you can opt out why bother with it at all?

There may be other reasons why you want an agreed maintenance order. It is important to take advice before deciding.

Points to consider may be  for example :-

  1. where one of you lives abroad or may be going to live abroad and the CSA will not have jurisdiction there; 
  2. some mortgage lenders like to see maintenance in a binding form such as a CSA assessment or a court order and you don’t want to go through the CSA process;
  3. you just want to see your agreement in writing rather than go through the CSA;
  4. you have agreed a higher amount than the CSA would prescribe and want to be sure to receive that for at least a year;
  5. you may have agreed school fees are to be paid and this is separate from normal child support and is something you need to discuss with your solicitor.

What happens when you opt out?

The CSA jurisdiction takes over from the court order and the court ordered maintenance lapses. You will pay the CSA amount from that point on whether it is higher or lower than the court ordered maintenance.

Don’t forget though that you actually have to apply to the CSA otherwise the court order remains in force.

There are ways to protect maintenance from reducing in some circumstances by using the spousal maintenance provisions if appropriate. These can be called “Segal” orders which encompass both spousal and child maintenance in one amount. Or you can just have a straightforward spousal maintenance order which can be set to automatically go up if the child maintenance goes down.

Talking to a solicitor about all these options doesn’t have to be an aggressive step. It is a fact that the various rules and laws are spread over different Acts of Parliament and Statutory Instruments and no amount of searching on wikivorce is going to be a good substitute for talking to an experienced divorce solicitor about this.

Save yourself hours of trawling through pages of misinformed forum commentary and blogs and just speak to a solicitor who can usually give you the answer to your question in a few minutes.

Armed with the right information you can go to mediation or just sit and talk to your husband or wife about the best way to deal with your situation.

And please don’t be offended if your solicitor makes a reasonable charge for a consultation. It is his/her job at the end of the day. No one wants to see exorbitant overcharging. No solicitor should make more work for themselves than is necessary. But it’s not unreasonable to charge a fair price for helpful advice.

 

Author: Nicola Williams Solicitor

Representing yourself in court – the pitfalls and how to get help.

The Judicial Working Group on Litigants in Person have now published a report into the issues now facing people representing for themselves and the court service and how to tackle them.

It comes as no surprise that people are representing themselves in ever growing numbers since the withdrawal of legal aid on 1st April for most family law cases.

But it isn’t just those who would have been eligible for legal aid previously who now choose to conduct their own case in court.

The report has found that many people simply believe that it isn’t going to be that difficult and so decide to do it themselves. I have no doubt that the abundance of unregulated websites owned by non-lawyers purporting to offer “advice” and even representation during court proceedings have a lot to answer for in this respect.

They of course benefit from encouraging this illusion that the work conducted by solicitor advocates and barristers is “money for old rope”.

I have watched as more and more people arrive at court without representation. They are often confused and feeling slightly vulnerable no doubt. With this comes a tendency to be on the defensive, refusing to speak to anyone from “the other side”, refusing to negotiate or agree any directions. This is understandable but it is a fact that it is making it increasingly difficult for anyone (including the individual themselves) to get the desired result.

Going to court to represent yourself without help is rarely straightforward in fact, no matter how intelligent you are, how articulate, how confident. The rules are complex, the reasoning behind decisions often difficult to grasp. And of course there is no one from the court service or the judiciary to fill the gap in advice

The net result is that the system is slowly grinding to a standstill which is compounding the frustration people feel.

Only weeks after legal aid was withdrawn it is apparent that the court office staff in particular cannot cope with their increased workload. The report confirms what pressures they are facing; people who do not understand what is expected of them generally turn to the court office for help. But the court staff are not trained legal advisers and cannot give advice. They are spending longer answering the phone and dealing with people at the counter than they were previously and as there are no additional staff to deal with this, this means that there is less time to do the paperwork.

We have found that a couple of our local courts are now 3-4 weeks behind opening post. Court applications are being filed away without being dealt with. Hearings can take months to be listed even when the issues merit being dealt with fairly urgently.

In the court rooms the Judges are finding it difficult to deal with heightened emotions and people who are very confused about what is expected of them and how to provide it. Many people are nervous and can’t get their points across. Hearings are taking longer. Outcomes are less predictable and often not what the individuals wanted.

So if you thought it was bad before people had access to free legal advice be prepared for it to get an awful lot worse.

Moaning about this is not going to improve the situation however. So what can be done about it? Where can people turn to when they can’t afford representation?

The government is intending to improve the information available on its websites, simplify the language used in court proceedings and pour some money into the struggling CAB.

It isn’t going to be quick and it won’t be enough.

Many firms of solicitors are now offering pay as you go legal services. Individual pieces of advice on how to take a certain step in proceedings with the customer/client managing the overall process themselves.

I have helped a lot of people this way recently. It isn’t always easy as I am dependent on receiving the right information in the first place to help me give the right advice. But we are developing ways to obtain that information systematically and efficiently which in turn reduces the cost for the consumer and also the risk of missing something important. And the feedback we are receiving is very positive. It will work. I am convinced of it. But it will take time to spread the news of the availability and benefits of this type of advice.

Barristers also offer written advice and face to face meetings where they will give one off pieces of advice.

The CAB can provide information to individuals as can certain charities.

Groups of solicitors are also taking turns around the country to set up a rota at court to provide free advice for people at court. This is particularly in relation to family law.

We all need to adapt to the changing landscape of what people need and how to provide it economically enough for people to be able to afford it.

What seems to concern the judiciary and this is apparent from this report, is the growing number of “McKenzie friends” who are attending court. A McKenzie friend is not a solicitor or a lawyer in the traditional sense and there is no requirement for them to have any legal training at all. It can in fact simply be a friend or relative who comes to court to offer support or assistance akin to advice.

In our justice system anyone representing themselves has the option to bring someone into court with them, but there are strict rules about what that person can and cannot do whilst in the court room and beyond.

What concerns me, and from the report it seems to concern the judges as well, are the people who are setting up as “professional” McKenzie friends. These people are paid to go to court with you. And according to the report, are often more expensive than a solicitor or barrister would be.

You may wonder how this is known. Well, every time people go to court the Judge will ask how much is being spent on advice and assistance. Providing this information is a mandatory requirement in most proceedings. And so it is fairly easy for the Judge to compare the fees being charged by a solicitor or barrister with the fees being charged by a McKenzie friend.

It isn’t just the cost that is a concern however. What has come out of this report is just how much concern there is that these people have little or no training in some cases and of course they are unregulated and so when they get something wrong there is no one to investigate it and put it right for the consumer.

They are not insured either and so when it does go wrong there is no redress.

Here’s some of what the report is saying:

“Generally, the practice has been that where it will be beneficial to the fair and just determination of a case to have a lay person conduct a hearing on behalf of a litigant in person, then the right is granted in the interests of justice. However, there has in recent years been a substantial increase in “professional” lay advocates who, without the requisite training or regulation of a professional lawyer, seek to act as advocates for litigants in person in court on the payment of a fee. Some of these representatives charge fees which are similar if not more than those of a professional lawyer. Some are unable effectively to represent the litigant. Some are positively disruptive to the proceedings.”

I have noticed that one of these professional McKenzie friends has opened a petition claiming that the judiciary is trying to limit your rights. This is, with respect, absolute nonsense. The judiciary wants simply to ensure that when you are represented it is by someone who knows what they are doing and is not going to charge you a fee for something you could frankly do better yourself.

There are very good reasons why only certain professionals are allowed to conduct court proceedings for clients. Being regulated protects the public and ensures justice is done. Yes there will be some solicitors who aren’t very good. There are people in every industry who could improve or are downright incompetent. But the overwhelming majority of solicitors I know, do know their stuff.

And I question why someone who has not taken the time (and invested the significant sums it now costs) to complete the academic stage of qualifying, to comply with the ongoing lifetime training requirements, someone who hasn’t bothered to work for several years on low pay (you could earn more in just about any industry) to gain on the job experience, someone who elects not to pay the  fees to the law society to be allowed to practice, or to take out the professional insurance at several thousand pounds per year, considers that they offer a better alternative.

These are difficult times for everyone involved in court proceedings, from the people involved to the court staff to the Judges.

Lawyers can help.  Being a family lawyer is neither glamorous nor well paid – whatever the papers say and no matter what the hourly rate charged by the firm is.

Family lawyers have chosen that vocation by and large because they like helping people. Does that sound naff? Well why on earth else would we do it? I don’t have a fetish for watching people cry. I don’t enjoy seeing their despair or their pain. I like contributing to making it go away.

I wish I could do more mediation but according to National Family Mediation referrals are down as more people are likely to turn their backs on it without the assistance of a solicitor. This is my own experience too.  Instead I will continue to offer as economical a service as I can, one that is regulated and insured, one that I have spent 27 years developing my skills and experience to provide.

And if you prefer to listen to the advice of someone who’s CV reveals nothing for 20 years before setting up a divorce clinic with no legal training, I’ll still be here if it goes wrong – still ready to help.

 

If you need assistance preparing any documents for court or want some advice about your case please call me on 0161 486 5080. We do charge (a reasonable sum) for advice and documents  – but old rope is absolutely free.

Self representing litigant now litigant in person

New guidance issued regarding litigants in person. See below taken from

http://www.judiciary.gov.uk/publications-and-reports/guidance/2013/mor-guidance-terminology-lips

 

Master of the Rolls small logo

Terminology for Litigants in Person

Practice guidance issued by the Master of the Rolls

March 2013

  1. In its Report of November 2011 the Civil Justice Council (CJC) recommended that in future individuals who conduct legal proceedings on their own behalf, and have traditionally been referred to as Litigants in Person (LiPs), should in future be referred to as self-represented litigants (SRLs). Subsequently the term SRL has gained some currency. LiP has however also continued to be used. The use of two terms to refer to the same thing is less than ideal. It is confusing both for individual litigants and the courts.
  2. The Judges’ Council (including the Lord Chief Justice and President of the Family Division) has consequently considered the CJC’s recommendation, and authorised me as Master of the Rolls and Head of Civil Justice, to issue Guidance, to promote clarity, certainty and simplicity, on the term to be used in future.
  3. I have considered all the circumstances, including the fact that the term LiP: is used in statute (e.g., The Litigants in Person (Costs and Expenses) Act 1975); is and will continue to be used by Government; is commonly understood and well-known both by the legal profession and individuals generally; the term SRL is unclear in its scope, as it can variously be understood to suggest that individuals are conducting the entirety of legal proceedings on their own behalf, that they are only conducting court advocacy on their own behalf or, that they have themselves obtained representation i.e., secured the service of an advocate.
  4. In the light of these factors I have therefore determined, with the unanimous agreement of the Judges’ Council, that the term SRL should not be adopted or used in future.
  5. The term ‘Litigant in Person’ (LiP) should continue to be the sole term used to describe individuals who exercise their right to conduct legal proceedings on their own behalf.
  6. This Guidance applies to all proceedings in all criminal, civil and family courts.

Lord Dyson MR
11 March 2013