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Seperation proceedings

  • 08-06-2011 11:48am
    #1
    MagicSean
    Closed Accounts Posts: 9,897 ✭✭✭


    Just want to run a situation by you and see what are your thoughts. Person A was cheated on by his wife whom we will call B, who is the sole earner in the family. When it all came to light B left the family home, leaving A with no income. A rents out two rooms in the home to help pay bills. One year later B had a solicitors letter sent to A looking for legal seperation. The solicitor used by B is the same one used by the couple in the past. A rings the solicitor and informs him that they have no legal representation. Solicitor advises A to go to FLAC which he does. He obtains forms for applying for legal aid. A contacts solicitor and advises them of this and that it may take up to 9 months to receive a decision. Solicitor informs A that they will not be waiting this long and will be going to court as soon as possible. He informs A that if he goes to court with no representation the judge will order all the assets be sold and funds redistributed and the best thing to do would be to come to an agreement with him beforehand. The solicitor has also told A that to get a solicitor would cost €6000. he has also told him that he will not be granted legal aid because they own a rental porperty and a home with no mortgage, and if he relies on legal aid it will cost him €8000 in the end. A is now afraid to wait for the legal aid application as he does not want to lose everything but does not have money to pay for a solicitor.

    There are a few things which bother me here.
    1 Should the solicitor be representing B when he previously represented both as a couple.

    2 Should the solicitor be advising A in the manner he has been

    3 The advice the solicitor gave A does not seem right to me. I would have thought that the case would be adjourned to allow for the legal aid application and for A to get advice or that the judge would make a decision on legal aid and adjourn the case for A to get legal advice.

    Any thoughts on the solicitors ethcial position or on the court procedures he has highlighted?


Comments

  • #2
    blueythebear
    Registered Users, Registered Users 2 Posts: 1,074 ✭✭✭blueythebear


    Seanbeag1 wrote: »
    Just want to run a situation by you and see what are your thoughts. Person A was cheated on by his wife whom we will call B, who is the sole earner in the family. When it all came to light B left the family home, leaving A with no income. A rents out two rooms in the home to help pay bills. One year later B had a solicitors letter sent to A looking for legal seperation. The solicitor used by B is the same one used by the couple in the past. A rings the solicitor and informs him that they have no legal representation. Solicitor advises A to go to FLAC which he does. He obtains forms for applying for legal aid. A contacts solicitor and advises them of this and that it may take up to 9 months to receive a decision. Solicitor informs A that they will not be waiting this long and will be going to court as soon as possible. He informs A that if he goes to court with no representation the judge will order all the assets be sold and funds redistributed and the best thing to do would be to come to an agreement with him beforehand. The solicitor has also told A that to get a solicitor would cost €6000. he has also told him that he will not be granted legal aid because they own a rental porperty and a home with no mortgage, and if he relies on legal aid it will cost him €8000 in the end. A is now afraid to wait for the legal aid application as he does not want to lose everything but does not have money to pay for a solicitor.

    There are a few things which bother me here.
    1 Should the solicitor be representing B when he previously represented both as a couple.

    2 Should the solicitor be advising A in the manner he has been

    3 The advice the solicitor gave A does not seem right to me. I would have thought that the case would be adjourned to allow for the legal aid application and for A to get advice or that the judge would make a decision on legal aid and adjourn the case for A to get legal advice.

    Any thoughts on the solicitors ethcial position or on the court procedures he has highlighted?


    A's solicitor shuold probably be the subject of a complaint to the Law Society as he would appear to be engaging in pretty strong arm tactics to get the matter settled.

    Case will be adjourned for B to get legal advice ESPECIALLY where A has a solicitor present. B should apply for legal aid immediately and when the matter comes up in court, outline to the judge that he has no legal representation and is awaiting a decision by legal aid board. Any correspondence from the legal aid board in relation to applying for legal aid should be brought to court.

    No judge would make an order distributing assets where one party is represented and the other has sought representation but has not yet obtained same.

    However, proceedings cannot be delayed indefinitely on this basis. If you are refused legal aid, you would have to get a private solicitor otherwise the matter can proceed in the absence of a solicitor for B.


  • #3
    FreudianSlippers
    Registered Users, Registered Users 2 Posts: 20,397 ✭✭✭✭FreudianSlippers


    So long as this is a hypothetical question and doesn't get too specific it can stay open. But we're keeping an eye on it :)


  • #4
    MagicSean
    Closed Accounts Posts: 9,897 ✭✭✭MagicSean


    blueythebear wrote: »
    A's solicitor shuold probably be the subject of a complaint to the Law Society as he would appear to be engaging in pretty strong arm tactics to get the matter settled.

    Case will be adjourned for B to get legal advice ESPECIALLY where A has a solicitor present. B should apply for legal aid immediately and when the matter comes up in court, outline to the judge that he has no legal representation and is awaiting a decision by legal aid board. Any correspondence from the legal aid board in relation to applying for legal aid should be brought to court.

    No judge would make an order distributing assets where one party is represented and the other has sought representation but has not yet obtained same.

    However, proceedings cannot be delayed indefinitely on this basis. If you are refused legal aid, you would have to get a private solicitor otherwise the matter can proceed in the absence of a solicitor for B.

    This would have been my thinking too but my experience is limited to criminal matters so I couldn't be sure.
    FreudianSlippers wrote: »
    So long as this is a hypothetical question and doesn't get too specific it can stay open. But we're keeping an eye on it :)

    I was very careful to make it hypothetical.


  • #5
    James Jones
    Registered Users, Registered Users 2 Posts: 534 ✭✭✭James Jones


    I was in a similar situation (separation following mutual representation by a solicitor) and our solicitor felt unable to represent either of us due to a conflict of interest.
    blueythebear wrote: »
    A's solicitor shuold probably be the subject of a complaint to the Law Society as he would appear to be engaging in pretty strong arm tactics to get the matter settled.
    A complaint can only be made to the law society by a client of a solicitor BUT as this solicitor acted for both parties previous to the separation, a complaint could be made..


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