Legal Aid in Family Mediation

Legal Aid in Family Mediation. Turn on the television, open the newspapers and you’ll be hearing, or reading about cuts. Cuts are everywhere, and if you’ve been thinking about separation, divorce or issuing ‘family proceedings’ you’ll know that getting the support of a lawyer to help you is limited unless you have the money to pay for it yourself. You can no longer get legal aid for help with judicial separation, divorce, financial proceedings or child arrangement proceedings, prohibited steps or specific issue applications (unless the application involves issues relating to the child being abducted or unlawfully removed) and Child Maintenance applications under schedule 1 of the Children Act 1989; unless you or your children have been subjected to, or are at risk of, domestic abuse.

What is domestic abuse?

LASPO defines domestic violence as “any incident,or pattern of incidents, of controlling, coercive or threatening behaviour, violence or abuse (whether psychological, physical, sexual, financial or emotional) between individuals who are associated with each other”. Associated persons are persons who include individuals who are or were married to each other or in a civil partnership; had agreed to marry each other or enter into a civil partnership; have lived together in the same household (but not if one of them was an employee,tenant, lodger or boarder); have or have had an intimate personal relationship with each other which is or was of significant duration; are relatives (such as parents, children, siblings, uncles, aunts, cousins,nieces, nephews); are the parents of or have parental responsibility for the same child.

If you are Associated Person, Legal aid is available in cases where the person applying for legal aid has been, or is at risk of being, a victim of domestic violence from the other party to the family proceedings (e.g. the father of your child has been violent to you and is applying for a Child Arrangements Order, and you have specific evidence. If you think this applies to you, you can contact a Solicitor such as Crombie Wilkinson LLP.

But what if these situations don’t cover you. What then?

Q. How else can I get Legal Aid?

A. Use Family Mediation

If you do not qualify for Legal Aid on any of the grounds listed above, you may still qualify for Legal Aid if you use Family Mediation. Legal Aid is still available if you qualify based on your means. This is known as the Means Test.

You will need to provide your mediator with evidence of all your income:

  • Wages / Salary
  • Child Benefit
  • Maintenance if you receive it
  • Housing Benefit
  • Council Tax Benefit
  • Working Tax Credit
  • Child Tax Credit
  • Employment Support Allowance (if NOT income related)
  • Contribution based Job Seekers Allowance
  • Dividends
  • Trust funds
  • Disability Living Allowance is disregarded.

Passported Benefits : If you receive (directly or indirectly) Income Support, Income based Job Seekers Allowance, Income based Employment and Support allowance, Guarantee Credit or Universal Credit, you will automatically qualify for Legal aid subject to a Capital Assessment.

If your income is greater than £2657 per month gross, you will not qualify for Legally Aided Mediation and you will have to pay privately. If the person you want to mediate with is entitled to Legal Aid however, you will receive your MIAMs and the first session of mediation under the Legal Aid scheme, so it will be free to you.

Capital Assessment

Capital includes any savings, cash in the bank, shares, properties, vehicles of significant value, antiques and pieces of art. If you have cash in the bank, shares, pieces of art etc worth over £8k you will not be entitled to Legal Aid.

Capital Assessment & Property

When it comes to property, the capital assessment is more complex. It depends upon whether the property is the Subject Matter of Dispute or SMOD as it is known. This relates to property that you and the other person are in dispute over.  It’s often the marital home and any second homes you may have. Calculating the capital for legal aid purposes is complex. It isn’t as straight forward as taking the equity in it and splitting it. This is because for Legal Aid purposes, there are limits in the amount of mortgage (mortgage disregard) you can take off the equity. The maximum is £100K. Even if you owe £150k, the Legal aid board will only take the maximum of £100k into account (see the working example below.

The Legal Aid Agency then allows a SMOD disregard if the property is an item in dispute. This is another £100k to your share of the asset.

The Legal Aid Agency also allows something called the equity disregard of £100k to your share of the asset.

You also have to include capital that isn’t SMOD. For example, you may have left the marital home and purchased a place of own. That property isn’t the Subject Matter of Dispute if you bought it with non-marital money, but the capital that you have in it is still relevant.

How does this work?

Capital which is the SMOD

Imagine that you and your husband own a house jointly. Its value is £360,000. You have a mortgage of £175,000 this property is the Subject Matter of Dispute. In other words, you need to resolve how you are going to share the equity or deal with the property. Can you qualify on a capital basis for Legal Aid subject to other capital being less that £8K?

Value of your home                                                    =£360,000

Deduct Mortgage (max £100K)                                  =£100,000

LAA Equity                                                                 = £260,000

Your share                                                                 = £130,000

SMOD disregard £100k                                             =£100,000

remaining LAA Equity                                                =£30,000

Equity disregard £100k                                              = -£70,000

= NIL (the limit is £8,000 so you would qualify for Legal Aid so long as you didn’t have any other capital such as cash in the bank of £8K or more).

The situation is complex is you own more than one property as the other property is considered first. If you are in this situation, contact a local mediator to discuss how mediation can help you and consider whether you will be eligible for Legal Aid.

The capital limit is always £8,000. This means that even if your property has a nil balance on calculation, if you have other capital such as cash in the bank, exceeding £8,000, you wont qualify for Legal Aid.

Capital which is not SMOD

If you have property which is not the SMOD, you cannot take this deduction off. So for example, imagine that you have bought yourself another property, it’s in your sole name. The property is valued at £260,000 and you have a mortgage of £75,000

Value of your home                                           = £260,000

Deduct mortgage max £100k                           =   £75,000

LAA Equity                                                       = £185,000

Equity Disregard   £100k                                 =  £85,000

In this example, you would not be entitled to Legal Aid as you are not sharing equity and you cannot use the SMOD disregard.

If you wish a mediator to do a formal calculation for you, they will do this at your MIAM or Mediation, Information and Assessment Meeting. You will need to provide them with the documents listed above. Ensure that you have these with you before you attend your session or you may be charged a MIAM fee. MIAM fees vary but you can expect to pay anywhere from £75 – £100 for this.

Remember also that if you do not qualify but your former partner does, you will be entitled to your MIAM and one session of Mediation paid for by the Legal aid Agency. If your former partner qualified but you did not, it will be you who will be entitled to the MIAM and session paid for by the Legal Aid Agency. Of course, you may both qualify in your own right. You can check basic eligibility using the online checker Legal Aid in Family Mediation and its worth contacting a local mediator to discuss our individual situation.

So there you have it, a brief over view on when you might qualify for Legal Aid in Family Mediation. There are so many benefits to using Family Mediation and the fact that you may get it paid for is just one of them. Contact a local mediator today to find out how mediation can support you.

My name is Emma. I’m a Family Mediator with Crombie Wilkinson-Your Family First. You can call me on 01904 697760, email me at mediator@yourfamilyfirst.co.uk or visit our website at www.yourfamilyfirst.co.uk