Women could lose out on divorce rules

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The Independent Online
THE RECENT white paper on divorce introduces a one-year cooling- off period to allow more time for mediation - and for fairer financial settlements - before divorce can take place. But fears are being expressed that thousands of women on legal aid could be forced into unfair divorce settlements by the arrangements for mediation.

These measures are designed to take the acrimony out of divorce proceedings. After an initial compulsory briefing about the full ramifications of divorce, couples are to be directed towards mediation, leading, it is hoped, to a more amicable and constructive settlement.

But problems will arise because mediation is set partially to take the place of legal advice for people - usually women without incomes of their own - on legal aid.

Government funding will be available for those opting for mediation, if they pass the standard legal aid means test. The money will be taken from the legal aid budget.

This budget rose to £226m in 1993/4. One third to a half of the figure is matrimonial legal aid. The Lord Chancellor, Lord Mackay of Clashfern, hopes to cut bills by the introduction of cheaper mediation services to replace legal advice.

The Solicitors' Family Law Association, however, warns that for a mediation to be successful, partners need full legal advice at every step. It is not the mediators' role to give advice; they are restricted to bringing up the issues for discussion.

The SFLA say this situation could be very unfair. While the partner who has his (or her) own resources may be able to afford concurrent legal advice throughout, the partner receiving legal aid forfeits some of this advice by agreeing to mediation. ''Access to legal advice will be very limited for the badly-off, whilst wealthy husbands can afford top-flight lawyers,'' said Diana Parker at the SFLA.

Injustices may result, with the more vulnerable party getting a second- class settlement.

''There is a tendency for women to be too conciliatory, and give in too much to avoid acrimony,'' said Felicity Crowther, at London solicitors Bindman & Partners.

Ms Crowther has seen many mediated settlements where complex financial issues have not been addressed and which have missed out vital parts of the husband's assets. She believes that financial agreements should only be made with a lawyer's advice. ''Often I see cases where the mediator has failed to assess the value of the husband's pension, and the future earnings, and has therefore allocated to the woman an unfairly low proportion of the equity of the house," she said. "The result would be a retirement spent in poverty, in a bedsit, with just a state pension.

''I say to clients, look ahead to your financial position at retirement compared with your husband's future position," Ms Crowther added. "If it's not broadly equal, change it.''

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