Legal aid FAQs - divorce proceedings

Q1.   My client wishes to apply for divorce proceedings. Will this cover proceedings to resolve the financial issues?

Proceedings for divorce give rise to the right to bring ancillary relief proceedings to resolve financial issues between the divorcing couple. If the Agency decides to fund representation in divorce proceedings and representation in related ancillary relief proceedings, both proceedings will be covered under the same certificate if the ancillary proceedings are commenced within 6 months of the divorce absolution having been issued in the divorce. However, divorce and ancillary relief proceedings raise very different issues for the Agency in relation to the merits criteria for civil representation and the appropriate level of representation. Therefore, the Agency will consider the merits of divorce and ancillary relief applications separately (although they can still both be applied for as part of the same application). Each certificate issued will be clear whether it covers divorce only, ancillary relief only, or both.

A certificate for “divorce only” will not cover any financial matters, except in cases where there is already a draft full and final ‘Matrimonial Agreement’ which requires only endorsement by the court. Divorce certificates will cover all necessary steps in the process for obtaining the divorce, up to applying to have the decree nisi made absolute. However, authority should be sought from the Agency if it is necessary to engage a process server or seek an order for substituted service. A similar approach applies to certificates for judicial separation, nullity and dissolution of a civil partnership although the procedure is different for each case.

For guidance on how to submit an application and an authority request in LAMS, refer to Section 16.0 and 19.0 of the LAMS Supplier Manual or ‘Submitting an application’ in the Instructional Videos.

Q2.   I have a certificate for divorce. Does this cover the issuing of a second or amended petition?

The approval of the Agency must be sought if it becomes necessary to issue a second or amended divorce petition. However, where this is appropriate, the Agency will be prepared to amend the original divorce certificate rather than requiring a fresh application. An amendment request for ‘amend certificate narrative’ should be submitted.

For guidance on how to submit an amendment request in LAMS, refer to the Section 19.0 of the LAMS Supplier Manual.

Q3.   I am seeking legal aid for an undefended divorce. Will counsel be granted?

No, in such cases a solicitor only will be authorised. If the position changes and the proceedings are defended, a fresh application will be required to be made to the Agency with full details of the merits and cost benefit of the proceedings.

Q4.   My client wishes to defend a divorce petition. Is legal aid available?

Civil representation can be granted either to bring or defend divorce proceedings. Unless withdrawn voluntarily (for example where there is a reconciliation), most divorce petitions are likely to be successful in securing a divorce. Applications for legal aid to defend divorce proceedings must set out what the client is realistically seeking to achieve (which may simply be to avoid an order for costs) and why it is believed that he or she has reasonable prospects of doing so. In cases where the grounds of divorce are disputed the Agency must also consider the cost benefit of contesting the proceedings, especially if little would be gained from delaying the process and other less contentious grounds for divorce will in due course become available.

Q5.   My client wishes to pursue a divorce – will the certificate cover it to be issued in the County Court or the High Court?

Divorce and ancillary relief proceedings can be issued in either the County Court or the High Court. The Agency will authorise and fund proceedings in the County Court, unless the Agency is satisfied that the High Court is the appropriate venue. Any arguments for this must be set out in the application.

Q6.   My client and their opponent both agree that the marriage has broken down but have differing views on who should issue the petition and on what grounds. What do the Agency require me to do?

The Agency will expect lawyers on both sides to seek to diffuse such tensions and ensure that the divorce proceeds in the most cost effective way. This will be particularly the case if the Agency is being asked to fund both parties to the divorce. It may sometimes be appropriate to agree not to pursue costs if the other side agree not to oppose the petition.

Q7.   What information do LSANI require?

Please provide the following:

  • Background to the marriage including key dates and ages of any children whether they are minors or over 18.
  • Proposed grounds of the divorce.
  • Position and likely response of the other opponent.
  • Details of any related proceedings or certificates.
  • Details of any evidence likely to support or undermine the grounds relied upon (for example non-molestation orders in unreasonable behaviour cases).

Q8.   What documentation should I provide with my application?

We will require:

  • Relevant party and party correspondence.
  • Draft divorce petition if available.
  • If applicable, copy consent of the opponent to the grounds of divorce.

For guidance on how to upload a document in LAMS, refer to ‘Uploading a document’ in the Instructional Videos.

Q9.   What type of certificate will I receive?

Certificates relating to divorce proceedings will usually be unlimited, save for exceptional circumstances.

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