Do I need a solicitor?

No matter how amicable a separation may be, there are few situations in which advice from a solicitor would not benefit one or other party. If there are any children under 16, or if there is any matrimonial property such as the matrimonial home, savings, investments, pensions or motor vehicles, then you need to know what your rights and obligations are and be in a position to make informed decisions about these important matters.

Even in a situation where there are no children and few, if any, assets there may still be issues to be resolved such as financial support or the transfer of a tenancy. Solicitors are there to advise you on the law, to identify issues particular to your circumstances, and to suggest options that are appropriate to your needs.

In Scotland, unlike other parts of the UK, it is usual to enter into a binding minute of agreement prior to divorce. Whilst the divorce itself can often be a straightforward and therefore relatively inexpensive procedure, it is usually essential to have a well drafted and enforceable Minute of Agreement in place before finalising the divorce itself.

Where there are children under 16, or where there are financial issues to be resolved, the procedures are generally too complex for a lay person to deal with on their own and they would therefore be advised to consult a solicitor.

By seeking advice at an early stage after separation, problems can be resolved before they become major issues. Where one party is stronger or more manipulative, there is a risk that the other party if left without advice from a solicitor may be treated less fairly and be left disadvantaged on divorce.

Many Family Law Association solicitors are trained in non-adversarial methods of dispute resolution such as mediation or collaboration. These methods can sometimes provide parties with outcomes that a court could not achieve and can help people retain good relations with their ex, which is particularly important where there are children of the relationship.

Sometimes of course, circumstances dictate that instructing a solicitor is essential, such as when there is violence, intimidation or the threat of removal of a child from the country. Here time is of the essence and it may be necessary to obtain protective measures through the courts at very short notice. Again, solicitors who specialise in family law work will be able to assess the situation, advise on procedures, and take such steps as may be necessary to protect their client’s interests.

Although cohabitants now have some rights, their position is still less secure than married couples. The law relating to cohabitants is still developing and in many cases the parties themselves will have little idea of their rights or obligations. While there can be grounds for claiming a capital sum, the arguments are complex and again taking advice from a solicitor in the early stages of the separation may be invaluable. There is a short timescale in which cohabitants’ claims have to be lodged with the court following separation or on death of a partner, so getting early advice is critical.

The public may think that solicitors are expensive, and it would be wrong to suggest that cost may not be an issue. But the cost of not getting any legal advice could be incalculable. Legal aid may be available in some circumstances, and although not always without costs, may allow a party to obtain legal advice or representation who could not otherwise afford it. 

Please note that the Family Law Association does not provide legal advice. Please use the ‘Find a family lawyer’ search facility to search for a family law solicitor in your area to obtain family law advice specific to your situation.