What’s in a name: is it a solicitor or a barrister you need?

I was dismayed when Jules, a mother who has been all through financial proceedings, right to a final hearing, told me she had not understood until afterwards that the barrister was much more important than her solicitor. She had a solicitor who did an excellent job and was empathetic and understanding of the narcissistic abuse Jules had suffered. So she felt well supported and confident of a good outcome. Sadly that’s not what she got. Her barrister was a lovely lady but no match for the QC (now KC) instructed by her husband’s top London solicitors.

So what’s the difference between a solicitor, a barrister and a lawyer, and which do you need?

In simple terms, solicitors do the paperwork and barristers do the talking in court. Both are lawyers, as is anyone else with any legal qualification – it’s a rather meaningless term but commonly used and I don’t usually know who people are talking about when they use the word!

In an ideal world you will have both a solicitor and a barrister who will serve you well.  But most of us don’t live in an ideal world with the ability to pay anything between £20,000 and £200,000 for children proceedings and £40,000 to £millions for financial proceedings.

Solicitors handle the paperwork: they write letters to your ex or their solicitor, they draft court documents and statements and send them to the court on your behalf. If you have to go to court they will choose and instruct a barrister for you.

And, of course, they advise you on the law and how it applies to your case.

Barristers represent you in court (though they don’t wear wigs and gowns in the family court). They will often only meet you at court on the day of your hearing. If your case is complicated you will have a conference (meeting) with them in their chambers (office) or your solicitor’s office or online before the hearing.

You can now instruct a barrister yourself, known as direct (or public) access. Not all barristers offer direct access and if you want a KC (King’s Counsel, or silk) you will probably have to go through a solicitor.

If your ex is very abusive and you don’t want to deal with them then it’s a good idea to have a solicitor as a buffer between you so all correspondence goes through them. But you only need one solicitor, just because your ex has one doesn’t mean you must have one too. And if it’s your ex’s solicitor that means they pay for the post box service and save you money!

If your funds are limited, then think carefully at the outset what your budget is for legal fees and what you most need them for. If you’re going to have a contested hearing then it’s best to have a barrister to represent you if you can. The most important hearings to be represented in are fact-finding hearings in children proceedings and final hearings in financial proceedings. These do not happen at the start of the process so it’s important not to spend all your money on solicitors writing letters (which you could write yourself) when it’s much more important to have representation later on.

If your ex is not taking seriously the message you want to get across at the outset, then it’s sometimes good to get a solicitor to write an initial letter for you to set out what needs to be done and what will happen if your ex does not co-operate. That doesn’t mean you have to continue with the solicitor, so don’t make a huge down payment for them to act for you. And sometimes it’s more effective just to issue a divorce application to show your spouse that you mean business. You can pay a solicitor between £500 and £1500 (plus VAT) to do this for you, but it’s a simple form online and very easy to do yourself. So save your money for the best barrister you can afford when you really do need help.

Separation and divorce can be daunting things to face and some people just assume that they need a lawyer. And a few people really do – if there’s an international element to your case you may need early legal advice. If your financial affairs are complicated involving large businesses, trusts, overseas assets or anything out of the ordinary, you will need to instruct a solicitor.

If mediation is a possibility for you then it’s a good idea to have a solicitor to advise you on a reasonable financial settlement as you go along. And if you reach an agreement, one or both of you will need a solicitor to draft the agreement into an order to be sent to the court for approval.

If your ex is abusive or impossible to negotiate with you may be able to reach an agreement in hybrid mediation where you both have a solicitor (or a barrister) with you to advise and negotiate and draft the agreement at the end of the day.

If your ex is represented in financial proceedings and you have no money, you can apply for a Legal Services Payment Order if they could afford to pay for your solicitor/barrister too.

Going to court on your own is scary, but possible, and some people simply have no option. The first hearing will usually just be a directions hearing, i.e. deciding how the case is going to be progressed, rather than making big decisions. So if money is tight try it on your own and see whether you think you could do a later contested hearing alone or if you will need a barrister.

If you can’t afford a barrister you can take a McKenzie Friend into court with you for moral support and to help you make notes and prompt you, although they cannot speak for you.

Cases are usually won or lost in court, not on paper. So save your money for the best barrister you can afford, and make sure you have the right barrister for your case – this may mean doing your own research, rather than just using the barrister(s) your solicitor usually instructs.

You’ll find more information about all of this in my book here or you can drop me an email if you need any help with finding the right lawyers.