What is legal aid?
Legal aid is government funding that helps some people access legal advice and representation when they cannot afford to pay privately.
In family law, legal aid is more limited than many people expect. Whether someone qualifies depends on a number of factors and there is no single rule that determines eligibility.
Understanding the Three Legal Aid Tests
When a solicitor assesses whether legal aid may be available, they will often talk about three tests: Scope, Means and Merits.
These legal terms can sound confusing, but they are really just three questions.
Scope – Is the legal issue covered by legal aid?
Not all family law matters are covered by legal aid.
For some private family law cases, evidence of domestic abuse may be required before legal aid can be considered. Whether a case is “in scope” depends on the type of legal issue involved.
Means – Are you financially eligible?
The Legal Aid Agency may consider a range of financial circumstances, including income, savings, property and other assets.
This assessment is often more complex than people expect and is not based on income alone.
Merits – Does the case meet the funding criteria?
The Legal Aid Agency will also consider whether the case meets the requirements for public funding.
This may include looking at the nature of the case and whether legal aid funding is justified in the circumstances.
The important thing to remember
Many survivors focus on whether they have evidence of domestic abuse. While this can be an important part of the process, it is only one factor.
Even where domestic abuse evidence exists, legal aid may still depend on whether the legal issue is covered by legal aid and whether the applicant meets the financial eligibility requirements.
Can survivors of domestic abuse get legal aid?
Many survivors are surprised to learn that experiencing domestic abuse does not automatically mean legal aid will be available.
For many private family law matters, such as child arrangements disputes, legal aid may be available where there is evidence of domestic abuse and the applicant meets the Legal Aid Agency’s financial eligibility rules.
Each application is assessed individually and eligibility cannot be guaranteed until a legal aid solicitor has considered the circumstances.
Common misconception:
“I have experienced domestic abuse, so I automatically qualify for legal aid.”
Unfortunately, this is not always the case. Evidence of domestic abuse is often only one part of the assessment. Financial eligibility and the type of legal issue also need to be considered.
What counts as evidence of domestic abuse?
For many private family law cases, the Legal Aid Agency requires evidence of domestic abuse before legal aid can be granted.
The evidence does not need to be a criminal conviction. In fact, many survivors who receive legal aid have never reported the abuse to the police or seen the perpetrator prosecuted.
Depending on the circumstances, evidence may come from a range of sources, including:
- A protective court order, such as a Non-Molestation Order.
- The police.
- Social services.
- A GP, hospital or other healthcare professional.
- A domestic abuse support service.
- An Independent Domestic Violence Adviser (IDVA).
- A Multi-Agency Risk Assessment Conference (MARAC).
- A refuge or other specialist domestic abuse organisation.
The Legal Aid Agency has specific requirements about what evidence can be accepted, so it is important to seek advice from a legal aid solicitor as early as possible.
Common misconception
“I need a police report to get legal aid.”
Not necessarily. While police evidence can be used, it is only one of several forms of evidence that may be accepted.
Common misconception
“I need a conviction against the perpetrator.”
No. A criminal conviction is not required for legal aid. Many survivors access legal aid without any criminal proceedings having taken place.
How is financial eligibility assessed?
Many survivors assume that legal aid eligibility can be determined by looking at income alone. In reality, the assessment is often much more complicated.
The Legal Aid Agency may consider a range of financial information, including:
- Income and benefits.
- Savings and investments.
- Property and other assets.
- Money held in bank accounts.
- In some circumstances, assets held on behalf of children.
Because of this, it can be difficult to predict eligibility without speaking to a legal aid solicitor.
Common misconception
“I earn too much, so there is no point asking.”
Income is only one part of the assessment. A solicitor may need to consider a wider range of financial circumstances before advising whether legal aid could be available.
Common misconception
“I own a home, so I will still qualify because I cannot access the money in it.”
Property ownership is often an important factor in legal aid assessments. While there are circumstances where a property may not automatically prevent eligibility, significant equity in a property can affect whether legal aid is available.
Common misconception
“Only my personal income matters.”
Legal aid assessments can take account of a range of financial circumstances, not just salary. Savings, capital, property and other assets may also be considered.
Common misconception
“I have very little money in my own account, so I will qualify.”
The assessment is not always limited to the balance of a current account. Depending on individual circumstances, other assets and financial arrangements may also be relevant.
For this reason, it is important not to assume that you do or do not qualify. A legal aid solicitor will be able to advise on the information needed and whether an application is likely to succeed.
Important: Legal aid eligibility is often more complex than people expect. It is common for survivors to assume they qualify and find that they do not, and equally common for survivors to assume they do not qualify and never seek advice. If you are unsure, speak to a legal aid solicitor before ruling yourself out.
What family law issues can legal aid help with?
One of the biggest misunderstandings about legal aid is that it is available for all family law matters. Unfortunately, family law is rarely that straightforward.
When people separate, they are often dealing with several legal issues at the same time. These may include obtaining protection from abuse, making arrangements for children, resolving financial matters and applying for a divorce. Each issue is treated separately for legal aid purposes and different rules may apply.
Depending on the circumstances, legal aid may be available for matters such as:
- Applications for Non-Molestation Orders.
- Applications for Occupation Orders.
- Some disputes relating to children.
- Certain other family law proceedings where legal aid eligibility requirements are met.
- Public law proceedings involving local authority intervention.
Whether legal aid is available will depend on the specific circumstances of the case, the evidence available and the applicant’s financial eligibility.
Common misconception
“Legal aid covers all aspects of a separation.”
Not usually.
Legal aid may be available for some legal issues arising from a relationship breakdown but not others. For example, someone may be able to obtain legal aid for a protective injunction but not for every legal issue connected to their separation.
Common misconception
“If I qualify for legal aid, it will cover my divorce.”
Many survivors are surprised to learn that legal aid is generally not available for divorce proceedings alone.
While legal aid may be available for related matters, such as protective injunctions or some disputes concerning children, people often have to manage the divorce process itself without legal aid representation.
Common misconception
“I have evidence of domestic abuse, so legal aid will cover all of my family law issues.”
Evidence of domestic abuse may help bring some family law matters within the scope of legal aid, but it does not automatically mean that every legal issue arising from the relationship breakdown will be covered.
Common misconception
“Once I find a legal aid solicitor, they will deal with everything.”
Not necessarily.
A solicitor may be able to assist with one legal issue but not another. For example, a firm may be willing to undertake legal aid work relating to a Non-Molestation Order or Occupation Order but may not have the capacity, expertise or funding arrangements to take on related children proceedings.
This can be particularly confusing where the issues are closely connected. Survivors should ask at an early stage exactly which parts of their case a solicitor is able to assist with and whether separate advice may be needed for other legal matters.
Common misconception
“My friend received legal aid for a similar case, so I will too.”
Legal aid decisions are based on individual circumstances. Two people with seemingly similar situations may receive different outcomes depending on the legal issues involved, the evidence available and their financial circumstances.
Finding a Legal Aid Solicitor
Qualifying for legal aid and finding a solicitor are two separate challenges.
Even where someone appears eligible for legal aid, they may still need to find a solicitor with a legal aid contract who has capacity to take on a new case.
Across many areas of England and Wales there are fewer family law solicitors offering legal aid than there were in the past. This can mean that survivors face waiting lists or need to contact several firms before finding representation.
Common misconception
“If I qualify for legal aid, a solicitor will automatically be provided.”
Legal aid funding does not automatically come with a solicitor. Individuals are responsible for finding a solicitor able to take on their case.
Common misconception
“My local solicitor offers legal aid, so they will be able to help me.”
Not all legal aid firms undertake all types of family law work. Some may specialise in injunction proceedings, while others may undertake children proceedings or public law cases.
Common misconception
“If one solicitor says no, I do not qualify.”
A solicitor may be unable to assist for many reasons, including capacity, geography or the type of work they undertake. It does not necessarily mean that legal aid is unavailable.
What if I cannot get legal aid?
Many survivors find that legal aid is not available for their situation. Others discover that they may be eligible for legal aid but are unable to find a solicitor able to take on their case, or can only obtain legal aid support for part of the legal issues arising from their separation.
While this can feel overwhelming, legal aid is not the only route to accessing support.
Fixed-fee legal advice
Many family law solicitors offer fixed-fee appointments. These appointments can help you understand your legal position, identify your options and plan your next steps, even if you cannot afford ongoing representation.
Limited-scope legal support
Some solicitors offer support for specific parts of a case rather than full representation. This may include reviewing court documents, advising on evidence, helping prepare applications or advising before a hearing.
Pro Bono Representation
In some circumstances, free legal assistance may be available through pro bono organisations.
Advocate is a charity that helps connect people who cannot afford legal representation with volunteer barristers who may be able to provide free legal assistance.
Support is not guaranteed and eligibility criteria apply. Assistance depends on the circumstances of the case and the availability of volunteer barristers.
You can find out more at: https://weareadvocate.org.uk/
Representing Yourself
Many survivors navigate Family Court proceedings without legal representation. While this can be daunting, there are organisations and resources available to help people understand the court process and prepare for hearings.
How FLAG DV Can Help
FLAG DV cannot make decisions about legal aid, guarantee legal representation or conduct legal proceedings on your behalf.
However, we can help survivors understand their options and make informed decisions about next steps.
Our free family law advice service provides access to specialist family law solicitors who can offer legal advice on issues such as child arrangements, divorce and separation, financial matters, protective injunctions, legal aid and Family Court proceedings.
We understand that many survivors face Family Court without legal representation, either because legal aid is unavailable or because they have been unable to secure a solicitor. While we cannot act as your solicitor, we can help you better understand the court process and what to expect.
For survivors living in Berkshire, our specialist court support service provides practical and emotional support to those navigating Family Court proceedings relating to domestic abuse. Availability is subject to eligibility criteria and service capacity.
We also deliver Breaking the Fear: Understanding Family Court, a four-week educational programme designed specifically for survivors of domestic abuse who are navigating the Family Court process. The programme aims to increase understanding of how Family Court works, build confidence, reduce anxiety and help survivors feel more prepared to participate in proceedings as litigants in person.
Whether you have legal representation, are trying to access legal aid, or are facing court without a solicitor, FLAG DV can help you better understand the process and identify the support available to you.
Useful Legal Aid Resources
Check if you can get legal aid
Use the government’s online service to check whether your legal issue may be covered by legal aid and find information about eligibility requirements.
https://www.gov.uk/legal-aid/check-legal-aid
Find a legal aid solicitor
Search for solicitors and legal organisations that hold a legal aid contract.
https://find-legal-advice.justice.gov.uk/
Domestic abuse evidence guidance
Information about the types of evidence that may be accepted when applying for legal aid in family law cases involving domestic abuse.
