Family/civil Legal Aid: For non-criminal cases
Qualifying for family/civil Legal Aid:
Relevant factors
Overview
The decision whether to grant you Legal Aid will be made 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, and
- the specific nature of your case.
If you’re on a benefit, like JobSeeker Support or the Supported Living Payment – you’ll usually meet the financial criteria to get Legal Aid.
How does Legal Aid Services decide whether I can afford a lawyer?
Legal Services Act 2011, s 10; Legal Services Regulations 2011, regs 5-9
- Limits on income and assets – You can only be granted Legal Aid if your income and your disposable assets (property) are below the set limits.
- The particular limit that applies to you depends on whether or not you have a partner and how many children you have.
- How your income and assets are assessed – Legal Aid Services will assess your income and assets as follows:
- Your gross (before-tax) income – They’ll look at how much you earn before tax. Extra welfare payments aren’t counted as income – for example, an Accommodation Supplement, a Disability Allowance, or an Emergency Benefit are not counted.
- Your assets (property) – Legal Aid Services will look at how much money you could raise by selling your property. But it won’t include your equity in your first house (the market value of your house minus what you owe on your mortgage) up to $80,000, nor your car, furniture and tools of trade.
- Your partner’s finances – If you have a partner, their finances will also be taken into account. This applies whether you’re married or in a civil union, or in a de facto relationship (including same-sex).
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.
Other factors Legal Aid Services will consider when you apply for family/civil Legal Aid
- 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 (in some cases) – If your case is basically about money, or damage that can be compensated by money, Legal Aid Services will also look at your chances of winning your case (your “prospects of success”). This applies to all cases that don’t go to the Family Court – like employment, ACC, breach of contract, or defamation. It also includes relationship property and maintenance cases in the Family Court.
- Other grounds for refusing you – You can also be refused Legal Aid if:
- the likely cost of your case outweighs the benefit you could get from winning – for example, if you have a good case but the other side has limited money to pay you with, or
- you have other options – for example, complaining to the Health and Disability Commissioner instead of going to court.
You can also be refused Legal Aid if you’re not meeting your repayment requirements for Legal Aid granted to you for an earlier case.
What happens if my financial situation changes?
Legal Services Act 2011, ss 25, 111
If you’ve applied for or been granted Legal Aid, you have to tell Legal Aid Services about any increase in your income or disposable assets (property) that could affect whether you qualify for Legal Aid.
You have to tell them even if you only become aware later, after you stop getting Legal Aid, that your income or disposable assets increased while you were getting Legal Aid.
If you don’t report the increase, it’s a criminal offence. You can be fined up to $2,000.
Note: Your Legal Aid lawyer has to tell Legal Aid Services if they find out that your situation has changed in a way that would affect whether you still qualify for Legal Aid.
