When you first separate from your partner, almost everybody you speak to will tell you that you need to get legal advice. “Speak to a solicitor” they will say and will be unwilling to give you the specific advice you need. The main reason people say this is to limit their own liability – generally only a solicitor can give you proper legal advice and only after they’ve heard all the details surrounding your situation. The other reason people won’t give you specific advice, especially online, is because you may use general advice in a way that‘s not quite applicable to your situation and this could have very bad consequences.
So what sort of lawyer will you need? There are two main types of lawyer in Australia, Solicitors and Barristers. Attorney is an Americanism which doesn’t get used over here. Solicitors provide legal advice to the public for a price and will write letters and perform some of the more procedural legal tasks for you. Solicitors are called an officer of the court, but they can’t actually represent you in court.
When it comes time for you to appear before a judge, your solicitor will hire a Barrister to do this for you – so it’s important to know that the person that provides your advice on a daily basis generally isn’t the person that represents you in court. Your solicitor will brief the barrister a few days before your court date and he will then get up in front of a judge and argue your case.
It’s also important to know that you can’t hire a barrister directly – it must be done through a solicitor. Barristers have worked as solicitors for a few years before becoming a barrister and being allowed to appear before a judge. Historically, barristers are the lawyers that got to wear the wig and gown, but they no longer do this for lower courts such as the family law or magistrate’s court (they still do it for the supreme court or criminal cases). The really good (experienced and expensive) barristers have ‘S.C.’ (Senior Counsel) or ‘Q.C.’ (Queens Counsel). In states other than the Northern Territory if you have a barrister who is a QC, they will have been in the legal profession a very long time as they stopped awarding QC’s and started awarding SC’s over 10 years ago.
So do you really need a solicitor or to “seek legal advice”? The short answer is that you don’t need one, you can do everything yourself if required, but you should probably speak to one anyway. You are allowed to represent yourself in any dealings with the court, your partners lawyer or your partner (providing there’s no AVO or Intervention order in place). In fact the family court in recent years has become a lot more ‘user friendly’ and will give someone who is not a lawyer a bit more leeway in court when representing themselves.
So given that you can represent yourself, why would you need a lawyer at all? Well, they can be very useful when used properly. They can provide advice on how to proceed during a settlement and will guide you through the legal process. It is reassuring to know that there’s someone you can call who will (for a price) answer any specific questions you may have on your separation or how to respond to your ex partner. You can use a lawyer as much or as little as you need, only relying on them for specific advice, or using them for all dealings with the court and your ex partner.
You can find out how to select a divorce lawyer and get a rough idea on how much your divorce will cost in some of my other articles.
