LiPs ‘behind unfair’ divorce settlement

Topics: Family and children,Legal aid and access to justice,Courts business

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  • Mr Justice Holman

A High Court judge has granted permission for a woman to appeal her divorce settlement, after a lack of representation due to legal aid cuts led a district judge to conclude incorrectly that she was a liar and a bigamist.

In Azizi v Aghaty, Mr Justice Holman (pictured) said a judgment made by a deputy district judge, leaving the wife with just a 25% stake in a flat in Tehran, was unreliable and ‘objectively unfair’.


Emphasising that he was not criticising the judge for reaching the conclusion she did, he said: ‘She was faced, as so often occurs since the almost wholesale abolition of legal aid, with two unrepresented litigants in person.

‘The first language of neither of them is English, and, as will emerge, the wife in particular had difficulties with that language. Given those difficult circumstances the deputy district judge clearly did her best.’

Holman also noted that the wife, who was brought up in Iran, did not have an interpreter at the original hearing in January 2015, despite a judge in a previous hearing asserting that she needed one.

He said: ‘Many of the recorded answers of the wife are somewhat "garbled" and it’s not at all clear from the transcript that she fully understood every line of questions, nor that her answers are entirely legible.’

In the divorce settlement, the deputy district judge decided to transfer a jointly owned property in Dartford to the husband and ruled that a flat in Tehran, which the husband alleges was owned by his wife, should be transferred 75% to the husband, leaving the wife with 25%.

The reason the judge gave for what Holman described as a ‘striking decision’ was that the wife committed bigamy and ‘lied until forced to admit it’.

However, according to the judgment, this statement referred to a marriage in Denmark that was forced, never consummated and subsequently annulled. The couple disagreed over whether this history was known to the husband before the UK marriage. 

The deputy district judge sided with the husband, after questioning whether he would have applied for divorce proceedings if he had known that their marriage was, in truth, already void. She also said that the wife had lied about the Denmark marriage.

On appeal, Holman questioned the district judge’s line of questioning, saying: ‘She was pursuing a line of reasoning that may seem crystal clear to an experienced matrimonial lawyer, but may have been thoroughly confusing to lay parties’.

He said: ‘It is […] essential to appreciate that there is, or may be, a world of difference between being a party to a marriage which is objectively null and void because one of the parties is still married to another living person, and actually committing the crime of bigamy.’

Holman granted an appeal and remitted the matter for redetermination by a full-time district judge. 

Following the judgment, a spokesman for the Ministry of Justice said:

A Ministry of Justice spokesperson said: ‘Our legal aid system is still one of the most generous in the world. Last year we spent £1.6bn on legal aid, almost a quarter of our departmental budget.

‘The spending review settlement we have reached with the Treasury for the next five years leaves legal aid almost untouched.

‘It's long been the case that some people represent themselves in court but we are increasing the support available. This includes spending £2m on advice for litigants in person, including improved online guidance, new court guides and explanatory videos.’

Readers' comments (12)

  • This is a perfect example of the false economy generated by the legal aid cuts. The treasury has saved the expense of proper representation, and the result is injustice and ultimately an appeal before a district judge. I wonder how much this episode has cost the court system, and how that compares to the cost of simply enabling people to be appropriately represented in the first place.

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  • The phrase spending a 'Million to save a Penny', comes to mind.

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  • It's not clear why legal aid should be available for 2 foreign nationals to squabble about their assets...

    And why hasn't the woman bothered to learn English properly in the 15 years she has apparently lived here?

    It's always someone else's responsibility isn't it?

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  • They didn't get legal aid. The report says that. I expect they live here and need to use the courts of the state in which they live.

    Quite apart from possible reasons why she might not have spoken English all that well (as to which evidence is lacking), I know plenty of British people who can't speak English well enough to handle complicated legal issues...

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  • Perhaps we need to change the route to qualification and forgo the pupillage and the TC and just say that all solicitors and all barristers need to provide advocacy in the county court and small claims track for 6 months for free to anyone who needs it. That’s what you call vocational training rather than walking the partners dog or making tea or photocopying.

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  • They have a flat in Tehran and a "jointly owned property" in Dartford.
    Why should they qualify for, presumably, free legal aid.
    Why were they not made to part with the flat in Tehran and use the money to pay their own legal costs?
    If they had the money to buy two properties how is it they qualified for legal aid.

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  • I might be a long way off here, but why, under the old rules, wouldn't they have been eligible for LA? The test was income, was it not?

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  • Anon at 5.45 pm I must say I despair. Did you read the article? You ask 'how is it they qualified for legal aid.' My very quick reading of the article revealed that they didn't qualify for legal aid. The reference to LIPs ought to have alerted you to this fact. If you are a lawyer I hope you read case papers more carefully. If you are a lay person I think it is obvious why people need lawyers.

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  • Sorry, that ought to have read Anon at 5.31 pm

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  • Not only that, there used to be the Statutory Charge applied to legal aid for matrimonial cases which meant that the legal aid that was granted was recovered at the end of the case.
    The advantage of legal aid for people who qualified for it was that they were represented and this saved time and money and wasted court time AND the State recovered the cost of legal aid through the Statutory Charge.
    Also was there not a provision which said that when a party applied for legal aid the legal aid agency could ask them to sell assets to fund the case??
    The problem is that the myth has been promoted by the MoJ and other interested parties that instructing a Solicitor leads to huge bills and a Court battle so people try to deal with issues themselves-as in the reported case. This lead to the imposition of Mediation as a way to avoid the "Court Battle". The truth is that Mediation works best as part of the divorce litigation process AND the "Court Battle" is a rarity given that only about 8% of cases relating to financial issues result in a final hearing. Most cases are resolved through lawyer assisted negotiation. Instructing a solicitor, for most people, results in a fair settlement and saves Court time.
    Isn't it about time that MoJ revisited the funding of divorce cases and also revisited its propaganda on Mediation as a direct alternative to the "Court Battle", given that the Court Battle is such a rarity..

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