No Win, No Fee – No Go in Family Law
By Alecia Featherstone |04 May 2017 |General-Articles
I am sure that you have all seen the big signs as you are driving down the highway “NO WIN NO FEE. CONTACT US TODAY.”
Understandably when faced with the overwhelming and daunting prospect of legal fees, I imagine that these signs would certainly draw your attention and appeal to many.
‘No Win, No Fee’ generally refers to what is called a contingent-costs agreement. This means that whether or not you pay legal fees is contingent on securing a win. If you do not win then you do not incur any fees.
These types of agreements are normally found in personal injury disputes whereby the ‘win’ is clearly characterised as being a successful outcome. Sure the quantum or amount you receive may vary, however if you receive a payout then this is generally classed as a win and therefore you are required to pay fees. Of course there are regulations in place which cap the fees to be charged, however no win = no fee.
In family law we often get asked whether we work on a ‘No Win, No Fee’ basis. The answer is quite simply no. There are many reasons as to why ‘No Win, No Fee’ simply has no place in family law, with the main difficulty being what a ‘win’ is in family law?
If only there was an easy answer to this question. When dealing with family law matters the outcome achieved should be one which is in the best interests of the children when determining parenting arrangements, and one which results in a just and equitable division of property when dividing assets. Generally neither of these processes result in a throw your hat in the air, yahoo at the top of your lungs type win. Normally they result in both parties receiving what is likely to feel like a somewhat compromised result, whether this was by agreement or as ordered by a Judge. It is unusual that someone walks out with everything going their way. Whilst this may sound like the fun police are in town, when considered more closely, seeking to define a win in family law can cause many problems. Just consider the issues facing people in these scenarios:
1. You achieve orders which provide for you to have the children more than half of the time.
A win? Not necessarily, consider circumstances where you believe the children should be in your care solely, due to concerns you have about the children being at risk whilst in the care of the other parent. This outcome is unlikely to feel like a ‘win’.
2. The outcome results in you retaining more than 50% of the property available for division.
A win for some perhaps, however probably not so for the person who came into the relationship with all of the assets and therefore I imagine is now feeling very ripped off and not at all like a winner.
Are you now seeing the problem?
Whilst a particular outcome may be a win to some, to others in different circumstances it might be quite the opposite. This is the main reason why ‘No Win, No Fee’ does not exist in family law. Naturally there are also concerns that this would encourage parties to litigate matters, where the better outcome is often achieved by negotiation or other dispute resolution practices such as mediation.
There is light at the end of the tunnel however….
Whilst no win, no fee is a ‘no go’ in family law, there is sometimes another0 option for people who are unable to pay legal fees upfront in property settlement matters. You may be able to enter into a deferred fee arrangement. This means that you do not pay your fees on an ongoing basis, however instead you pay your fees upon finalisation of the matter, out of funds you receive from the settlement. Of course you generally have to meet certain criteria to be eligible for this, however this can be a good option for people who may be in a weaker financial position and therefore otherwise unable to obtain legal advice.
Another option is using smaller regular payments to establish trust monies or a payment plan.
We know that seeking legal advice can be daunting enough, let alone with the unknown of paying legal fees that you never expected to be paying.
Our guide, Taking Control of Your Legal Costs, sets out a number of options for payment of legal fees as well as some tips on how to ensure that you’re in charge of your legal fees. You can download a copy here.
It pays to make enquiries, just because you may not be able to pay upfront to obtain advice or representation, this does not necessarily mean that you have to navigate the family law world alone.