Family/civil Legal Aid: For non-criminal cases
Qualifying for family/civil Legal Aid
How is family/civil Legal Aid different from criminal Legal Aid?
Family/civil Legal Aid is financial help provided by the government to help you get a lawyer if you cannot afford one.
The Legal Services Act divides Legal Aid into two categories: “criminal” Legal Aid and “civil” Legal Aid:
- Criminal – if you’ve been charged with a criminal offence, see: “Criminal Legal Aid”.
- Civil – all cases that aren’t criminal. In practice, the Legal Aid administrators divide the “civil” category into two further categories:
- Family – for cases going through the Family Court
- Civil – for all other cases (e.g., employment issues).
This chapter uses the term “family/civil Legal Aid” to refer to all Legal Aid applications that aren’t for criminal cases.
If you’re going through the Family Court, you should look into getting Family Legal Advice Service (“FLAS”) before applying for family/civil Legal Aid.
You can use FLAS at any stage of a dispute, and most family/civil Legal Aid providers offer FLAS. They can advise whether you need to apply for Legal Aid and can help you with the application. For more information about FLAS, see: “Can a lawyer represent me in a Parenting Order case?”.
Who can get family/civil Legal Aid?
You don’t have to be a New Zealand citizen or permanent resident to be able to get Legal Aid.
Applicants must be a person (rather than a business or a group), apart from some applications before the Waitangi Tribunal.
If you’re under 16 you can still get family/civil Legal Aid, but you’ll usually need to have an adult (someone 20 or over) apply on your behalf. If you’re 16, 17, 18 or 19, Legal Aid Services can take your parents’ assets into account if you’re still living with them or being supported by them when deciding whether you qualify for Legal Aid and how much you should have to repay.
Am I eligible to get family/civil Legal Aid?
The decision whether to grant you Legal Aid will be made by Legal Aid Services at the Ministry of Justice. They’ll decide on the basis of two key sets of factors:
- whether you can afford a lawyer (see: “Financial eligibility for Legal Aid”), and
- the specific nature of your case.
If you’re on a benefit, you’ll usually meet the financial criteria to get Legal Aid.
Specific nature of your case
Legal Aid Services will also consider the specific factors about your case:
- Reasonable grounds – To qualify for Legal Aid, you must have “reasonable grounds”. This means that you, personally, are affected by the case. You’ll almost always have “reasonable grounds” if your case involves children (for example, a dispute about day-to-day care or contact), or family/domestic violence or mental health.
- Chances of winning – Legal Aid Services will also look at your chances of winning your case (your “prospects of success”). This test applies to all cases that are basically about money (or damage that can be compensated by money). This test won’t apply to cases in the Family Court (except for relationship property and maintenance cases).
- The cost of your case compared to the potential benefits – You can be refused if Legal Aid Services considers that how much you will have to pay a lawyer will end up being more that you might get from winning your case (for example, if you have a good case but the other side has limited money to pay you with).
- Other options available to you – Legal Aid might decline your application if you have other options to resolve your dispute (for example, complaining to the Health and Disability Commissioner instead of going to court).
Note: It’s generally harder to be granted legal aid for civil cases (compared to family or criminal cases). There are fewer lawyers who are approved to provide Legal Aid for civil cases. Additionally, civil cases can cost a significant amount of money. You would have to have a likely chance of winning a large sum in order to meet the criteria explained above. It’s recommended to make use of any dispute resolution process available to you before considering a civil claim in court (such as Disputes Tribunal if your claim is less than $30,000, or mediation).
Getting Legal Aid even though you’re over the income and asset limits
In special cases you may still be able to get Legal Aid even though you’re over the income or asset limits.
In deciding whether there are special circumstances, Legal Aid Services usually have to consider both, first, how much your case is likely to cost; and second, whether you can pay for it without Legal Aid.
In some cases, however – for example, involving family violence or Oranga Tamariki – Legal Aid Services can grant you Legal Aid on the basis of only one of those two issues. So, for example they could grant you Legal Aid on the basis that you can’t afford to pay yourself, and don’t have to consider how much the case will cost.
What kinds of cases is family/civil Legal Aid available for?
You can get Legal Aid for many types of private disputes and other non-criminal problems that will go, or could go, to court. It’s available from the first time you talk to a lawyer until your case is decided in court, including any appeals.
Family Court cases – Legal Aid is available for family and domestic disputes dealt with by the Family Court, such as:
- relationship property problems – but not applying for a divorce (“application for the dissolution of marriage”)
- maintenance (financial support)
- disputes to do with care arrangements for children (previously, there were some limitations as to when you could have a lawyer represent you in these disputes. As of 1 July 2020, you can have a lawyer represent you throughout the whole dispute, which allows you to apply for Legal Aid at the outset)
- applying for a Protection Order or other order under the Family Violence Act 2018 (you might not have to repay Legal Aid in these cases – see: “Repaying Legal Aid”)
- when Oranga Tamariki apply for a Care or Protection Order about your child
- Compulsory Treatment Orders under the mental-health laws.
Civil cases in the District or High Court – Legal Aid can be available for suing someone or being sued in the District or High Court, or otherwise appearing in these courts over a civil dispute, such as:
- recovering a debt
- a breach of contract (for example, a hire-purchase agreement)
- bankruptcy or insolvency.
Specialist Tribunals – Legal Aid can be available for disputes dealt with by a range of specialist Tribunals specialist courts, such as:
- the Employment Relations Authority (for employment disputes)
- the Human Rights Review Tribunal
- the Legal Aid Tribunal
- the Māori Land Court and the Waitangi Tribunal
- the Motor Vehicle Disputes Tribunal
- the Immigration and Protection Tribunal, if it’s a refugee case
- the Social Security Appeal Authority
- the Tenancy Tribunal
- the Environment Court.
What can’t I get family/civil Legal Aid for?
You won’t be able to get Legal Aid for the following types of cases:
- divorce cases (the application for the dissolution of marriages and civil unions)
- advice from or work by a lawyer that doesn’t involve a problem that could go to court (but mediation in a dispute is covered by Legal Aid because there’s a potential for it to go to court if mediation doesn’t work)
- the Disputes Tribunal (usually there are no lawyers at Disputes Tribunal hearings)
- most immigration issues (except for refugee status issues)
- court cases outside New Zealand
- cases brought by companies and groups (except in some special cases, like Waitangi Tribunal cases)
- getting Work and Income to review one of their decisions (but Legal Aid is available for appealing a review decision to the Social Security Appeal Authority)
- problems with schools, universities and polytechs (for example, suspension meetings before a school Board of Trustees).
There must be a current or potential court case
You can’t get Legal Aid just for getting advice from a lawyer if you’re not involved in a current or potential court case. You have to be planning to take your case to court, even if you later manage to settle the dispute out of court. Legal Aid is available for mediation to solve disputes that would otherwise have to go to court.
For example, you can’t get Legal Aid to get a lawyer to draw up a will for you, as this doesn’t involve a dispute that you intend to take to court.