DIVORCE AND THE RECOURSE TO LEGAL AID

DOIhttp://doi.org/10.1111/j.1468-2230.1980.tb01611.x
AuthorColin S. Gibson
Publication Date01 Nov 1980
THE
MODERN LAW REVIEW
Volume
43
November
1982)
No.
6
DIVORCE
AND
THE
RECOURSE
TO
LEGAL
AID
DIVORCE
as a judicial act has been fundamentally changed in England
and Wales by successive extensions of what is termed the special pro-
cedure. When first introduced in 1973 its availability was restricted to
unopposed petitioners who had no dependent children and who
sought divorce by the fact
of
two years consensual separation. Two
further extensions culminating in the Matrimonial Causes Rules 1977,
have meant that since April
1,
1977,
all
undefended divorces can
now be dealt with by special procedure. The Registrar, once satisfied
that the petition and its supporting affidavit evidence meets the
requirements for a divorce, certifies his approval, thereby allowing
the judge to grant the decree nisi. But the parties in an undefended
divorce are not required to appear before either Registrar or Judge.’
The obtaining of a divorce decree has become an administrative
process.
SPECIAL
PROCEDURE
AND
THE
NEW
LEGAL
AID
POLICY
When the Lord Chancellor, Lord Elwyn-Jones, announced in 1976
the extension of special procedure to all undefended divorces he also
declared that legal aid would no longer be available in such pro-
ceedings.2 The rationale behind this change was that as determination
of
the undefended petition would not now require
a
court hearing
there was no longer need for a lawyer’s attendance at court. However,
legal aid would still be available where the need for a hearing arose
for which legal representation was necessary. This covered contested
petitions and such matters as disputes over ancillary questions involv-
ing maintenance, property, or arrangements for the children.”
1
The parties may be summoned to the Judge’s
or
Registrar’s chambers
if
there
are dependent children
or
if ancillary matters are to be resolved.
2
H.L.Deb.,
Vol.
371,
cols.
1212-1220.
These changes
in
legal aid were brought
about by the Legal Aid (Matrimonial Proceedings) Regulations
1977 (S.I. 1977
No.
447).
These
regulations also came into operation on April
1,
1977.
3
Also, where in
the
special circumstances
of
the
case it would cause grave hard-
ship if legal aid was refused. Other incidental proceedings such as where the
petitioner
seeks
leave
to
present the petition within three years of marriage, and
applications
for
interim injunctions remain eligible
for
legal aid. Figures
for
legal
aid certificates issued to petitioners and respondents in the
12
months April
1978-
March
1979
show that
9,671
certificates were obtained
for
these
divorce matters
(including contested cases) compared with
52,381
certificates
for
ancillary matters
(ancillary
relief,
custody and access
or
a
combination
of
these,
or
with an in-
609
VOL.
43
(6)
1
610
THE
MODERN
LAW REVIEW
[Vol.
43
Ancillary proceedings were, in the words of the Lord Chancellor,
the areas of real contest between the parties to divorce proceedings
today, not the question whether the petitioner should get
a
decree.”
The introduction of the special procedure and the restriction of
legal aid are major changes in our approach to the administration and
regulation of divorce. Yet Members of Parliament in the limited
debate before these changes were introduced made little attempt
to
scrutinise the working of the Legal Aid Scheme. The purpose of this
article is to
:
(1)
study divorce petitioners’ resort to legal aid, especially
since
1970,
and to see what type or group of petitioners have
benefited; (ii) examine recent changes in legal aid policy and their
possible effects upon those seeking divorce; and (iii) suggest that the
transformation of special procedure
to
standard procedure was brought
about by financial considerations and not from
a
purposeful Parlia-
mentary rethinking of what the legislative, administrative and social
needs of
a
modern divorce policy should be.
Legal Aid
in
the period
I9.50-I969
Calculations show that in the first
15
complete years
of
the legal aid
scheme
(1951-1965)
there was
an
annual average of
33,396
petitions
filed for dissolution and nullity, of which
56
per cent. had benefit of
legal aid. The fact that the rules allow the financial resources of
separated husbands and wives to be individually assessed and not
pooled, as would normally occur for a married couple, resulted in
70
per cent. of all wife petitioners receiving legal aid in this period.
Rising wages but relatively static financial qualifying standards had
meant that the proportion of husband petitioners obtaining legal
aid varied from
46
per cent.
in
the period
195Cb55,
dropping to
23
per cent. in
1956-1960
and then rising to
53
per cent. in
1961-1965
following the introduction of more generous Regulations in
1960;
producing an overall average of
42
per cent. The evidence led the
authors of an earlier study to conclude that
it is the wife petitioner
without means of her own to whom legal aid has been of special
help.” The same researchers had observed earlier that the evidence
of the late
1960s
provided
further confirmation that the association
between cost of divorce, legal aid and the divorce rate is neither
direct nor simple.”
Oficial statistics
Knowledge of the yearly number of matrimonial suits and of those
proceeding with the assistance
of
legal aid allows researchers to
examine variations in the resort to legal aid. Such information was
junction attached); resulting in
a
ratio
of
one to five (19th Legal Aid Annual
Reports [1978-791, appendix
8,
Pt.
1,
pp. 32-33).
and Wales, Part
I1
:
Since
1950
(1971)
1
Fam.
+w
122, at 128.
Hypothcqis
(1972)
6
Sociology 205-216.
4
H.L.Deb.,
op.
cit.
cols. 1218-1?19.
6
C. Gibson and
Miss
A.
Beer, The Effect
of
Legal
Aid
on
Divorce
in
England
6
ZbLf.
p. 125.
See
also
Robert Chester, Divorce and Legal Aid: A False

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