Instructing a family lawyer often comes at a time when a person is going through a turbulent period in their life. Feelings of vulnerability and fear are understandable. It is therefore more important than ever that care is taken when deciding, firstly, whether to instruct a family lawyer and then which one to instruct. Clarity as to what you should expect from your family lawyer is important.
Who should you instruct and where should your lawyer be?
Practising law is becoming more specialised. There are specialist lawyers within specific areas of the law, for example a family lawyer may be an accredited specialist in child law. It is therefore important that you instruct a lawyer who has the expertise and experience required for your matter.
It is also very important that you instruct a lawyer who practises in and has knowledge of the law in the jurisdiction which is relevant to your case. If you live in Scotland and are domiciled in Scotland, then it is likely that you would need to instruct a lawyer who practises in Scotland. However, if, for example, you are seeking a divorce in England then you would need to instruct a family lawyer who is qualified to practice in England. Your family lawyer will be able to advise you as to which country's law should apply to your situation.
Since the pandemic and the ability to conduct meetings, and in some cases court hearings, by way of videocall it is less important to instruct a family lawyer in close proximity to you. That said, most clients (and lawyers) still like the opportunity to have in-person meetings and will have a better understanding of the other solicitors and courts than those from further afield.
The most important thing to consider when instructing your family lawyer is that you have instructed someone whose professional advice you can trust and with whom you can have a good working relationship.
When and why should you instruct a family lawyer?
Family lawyers deal with a wide range of matters and when you instruct your lawyer will depend on your specific situation.
There are the "distress" instructions, for example when protective court orders such as interdicts/injunctions are required or contact with children has suddenly stopped. In these circumstances you should contact a family lawyer as soon as possible.
Family lawyers are often instructed prior to a marriage or cohabitation. Couples may decide they wish to enter into a pre-nuptial agreement or cohabitation agreement detailing how the assets will be divided between them should the relationship end. It is also possible to enter into these agreements during a marriage or period of cohabitation.
Family lawyers are also instructed when parties are beginning their family journey, often through adoption or surrogacy. In cases of surrogacy, it is usually the parents to be that will need to instruct a family lawyer rather than the surrogate although they may take legal advice initially.
It is important to instruct a family lawyer particularly in legally complex or high conflict situations. In Scotland once you are divorced you usually no longer have any recourse to make financial claims against your former spouse so it is important that all financial assets have been dealt with prior to the divorce being granted. If proper legal advice is not sought, significant assets such as pensions may be missed.
When children are involved all decisions regarding the children, such as contact and who they should live with, need to be made in the children's best interests. A family lawyer can advise you as to your rights and responsibilities in relation to your children and will also be able to advise you as to what a sheriff or judge is likely to decide if matters cannot be agreed.
What should you expect from your family lawyer?
All lawyers are bound by very strict confidentiality rules.
Clients understandably want to know how much a separation or a matter involving children is going to cost. It is usually very difficult to predict at the outset as every matter is different. If the situation is capable of swift agreement, then the legal fees will be far less than if there is protracted negotiation or a court action.
A family lawyer will try to give clients an estimate of costs but there are lots of varying factors meaning this can be difficult. Most matters are charged by way of an hourly rate but certain work, which is narrow in remit and predictable in outcome, can be carried out on a fixed-fee basis.
The nature of family cases means that clients are often distressed and there can be a need to act urgently, particularly where children are involved. As such, family lawyers should respond and act timeously when dealing with matters.
No-one wants to find themselves in a position where they have to instruct a family lawyer but it is sometimes necessary in order to find a way forward, reach a resolution and provide the client (and in many cases their children) with certainty and protection for the future.
A client should have high expectations of their family lawyer and feel confident, at all times, that they are working with them in a manner which protects them and progresses matters to a conclusion as swiftly and amicably as possible.
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Senior Solicitor
