Using the legal process to help resolve family difficulties can seem daunting, with different legal procedures depending on what you are asking the Court to do.
Mediators can give information but not advice and are currently not permitted to draft Family Court applications or orders, so you may also need a lawyer to help you decide whether an offer made in mediation is in your interests, as well as to make any agreements legally binding.
Some Family Court applications now require the applicant to attend a Mediation Information and Assessment Meeting ( MIAM) before their Court application can be heard. Civil Courts do not require attendance at a MIAM, but there can be costs penalties if parties are unable to show that they have given sufficient consideration to mediation and non-Court dispute resolution as an alternative to Court. If you’re unsure whether you might need to attend a MIAM please do call me, free of charge, to discuss. I’m also able to give you an indication on whether you might qualify for Legal Aid to pay for it.
In England and Wales there isn’t one single legal process that will sort out every aspect of the changes that need to be made when relationships end. So, if your situation isn’t suitable for mediation the information below may give you a clearer idea of the differences.
The Family Court deals with orders for arrangements for children whether for parents, step-parents, grandparents or wider family. It also deals with financial and property disputes between people who have been married or in a civil partnership together but separate applications are made for children, divorce and financial matters and are usually dealt with separately so the more disagreements there are the more complex, time-consuming and expensive it becomes to rely on the Courts to resolve matters.
The Child Maintenance Service is a separate body and apart from some limited exceptions deals with maintenance for children if parents cannot agree.
The Civil Court system deals with disputes over property and other assets for people who have not been married or in a civil partnership, including cohabiting couples, and family disputes about inheritance. The laws and legal procedures for these kinds of disputes are complex and there can be costs penalties for those that use the Courts and do not follow the rules, so specialist advice should always be sought if you are thinking of resolving matters by going to Court.
Attending a Mediation Information and Assessment Meeting (MIAM) is a good way to talk confidentially about issues that need resolving and to consider your options for dealing with them and finding information and any other resources that might help.
FAMILY LAWYERS – What’s the Difference?
Lawyers: the catch-all term for all qualified legal professionals.
Solicitors and Barristers: may only act for one client, not two, where their interests may be different. Barristers tend to be subject specialists who focus on representing people at Court and advising solicitors on preparation. Some barristers can be employed directly, under the Bar Direct Access Scheme. Solicitors; advise on what options are open to you, correspond with the other side if required, and help you prepare for Court. Some also represent you at Court.
Specialist Family Solicitors: can advise on what the law regards as relevant and help you consider the terms of any offer. They can help if you need a legally binding agreement submitted to Court after mediation, or with applications to Court if your attempts at reaching an amicable settlement are not successful. resolution.org.uk is a membership organisation for Family Law specialists. Members are bound by a Code of practice which requires them to work in a constructive way.
Collaborative Family Lawyers: can be engaged to attend joint meetings with both of you (with or without a mediator) and are immensely helpful if finances are complex, or if there has been previous difficulty focusing on constructive communication.
Civil Litigation Lawyers: If you need help with a claim against a co-owner of a property, who you have not been married to, you may need a solicitor with relevant civil litigation experience as this is not currently dealt with by the Family Court.
Collaborative Lawyers: are family specialists, and each side can appoint their own, to help negotiate in round-table meetings, with or without a mediator. If settlement is not reached, each side must then hire a different lawyer to represent them in Court.
McKenzie Assistants: can, with the permission of the Court, sit with you to take notes at Court and remind you of what to say, they can be professionals or supportive friends. They do not have to be legally qualified and should not give you legal advice. If you are thinking of using one offering a professional service, check they are insured and reputable.
A Legal Draftsperson: Can prepare Divorce paperwork and Consent orders for both parties if terms have been agreed in mediation. They can give legal information but not individual advice.
Family Arbitrators: qualified ‘private judges’ who can be instructed by the representatives of both parties to make decisions, as an alternative to waiting in the queue for Court.
If you are thinking of going to Court you might want to read my article about getting legal advice.
If you are applying to Court about arrangements for children or regarding finance and property you may need to attend a Mediation Information and Assessment Meeting MIAM first.