Second Class Citizens: How the Legal Aid reforms will rig family law

The government’s point of view was that it was time to make big decisions about priorities.

BBC article, 15 November 2010

In cutting legal aid for nearly all areas affecting the family sphere, the government has made it very clear where their priorities lie, and it is not with the most vulnerable members of society. The cuts are all over the place – family law, immigration, employment – and it is difficult to decide which of these is going to disadvantage women the most.

Even looking at a single area – family law – yields some very interesting data. Legal aid is not available for uncontested divorces, it can only be applied for where the other party contests the petition. Of the divorces granted in 2008 in England and Wales, 67% were granted to the wife. For all of the divorces granted, unreasonable behaviour was the most common reason for divorce. Of the contested divorces initiated, women were more likely to be granted Legal Aid as they are more likely to have no income of their own.

Taking Legal Aid away from contested divorce cases, therefore, is likely to result in far fewer cases being brought before the court, as the main instigators of divorce proceedings will not be able to afford to do so. So what are the alternatives if you’re stuck in a marriage and you want out?

Mediation isn't possible for everyone. Image captured by rsepulveda on Flickr.

The problem with mediation

Well, there’s mediation, which only works if the two individuals can agree on an amicable arrangement. I’m thinking that most people wouldn’t want to go through the court process if an amicable arrangement was possible. Even setting aside the thorny issue of child custody, solicitors claim that 4 out of 5 men try to hide wealth in divorce settlements. Going to court can prevent this through the agreement of a “consent order” deciding how property and assets are to be split. If the parties do not follow the order, the court can then enforce it. I find it laughable that those men would volunteer their hidden wealth because they’re around a mediation table rather than in a court room. Net result: wives lose out in a settlement, and have no recourse if the other party reneges on the agreement.

Domestic violence cases

Suppose that it’s worse, and that the woman is in an abusive relationship. Currently, if a woman wishes to keep her address secret, she can apply to use her solicitor’s address instead of her own. Most importantly for violent cases, it is recognised that mediation, which is voluntary, is inappropriate where there is a fear of violence by either party. Ah, I hear you cry, but funding will continue for family law cases involving domestic violence.

The thing is, “domestic violence” comes under section (b) of the Act, “unreasonable behaviour”. This doesn’t need to include the particulars of any violence experienced, but can be something much milder. In fact, unless the husband has a string of convictions for violence, it’s actually easier in some ways to have a divorce granted by citing milder grounds, as the other party is less likely to contest the petition. With domestic violence cases under-reported, it is difficult to estimate how many mild petitions for “unreasonable behaviour” hide battery and abuse. 77% of domestic violence victims are women, 1 in 4 women will experience domestic violence in their lifetime, and on average a victim will experience 35 assaults before calling the police. An inadequate avenue of escape previously partly available to thousands of women across the UK is now being firmly barred.

The cost of being single. Image captured by CascadeAndSTAN on Flickr.

The cost of being single

So why even get married? Surely it’s safer for all women to apply for divorce now, and to refuse to enter matrimony in the future. Why not simply opt for that? Put simply: money.

Women’s access to income through employment will be significantly curtailed as public sector jobs are shed, and their access to government assistance and benefits will be cut. The cuts will hit women twice as hard as men, and the poorest 13 times harder than the richest. I guess it’s a good thing that the number of women already below the poverty line is negligible… oh wait, one third of women earn less than £100 a week. A working lone parent with two children will suffer cuts of 10.4% of their income, compared to a two-parent, two-child family on a modest income’s drop of 6.2%. To give you an idea of what this means, in London, 9 out of 10 lone parent households are headed by women.

What am I supposed to do about it?

Taken individually, any of the above measures are regressive. Put together, and they are positively draconian. The only saving grace is that these changes have not yet been confirmed, and are still subject to a public consultation (ending 14 February 2011). Make sure your voice is heard, by completing the online form. Unless we speak out now, it may cost us far too dearly in the future.