Meeting your Legal Fees on Divorce: Your Questions Answered
One of the first questions that clients tend to ask us is “will my husband pay my legal fees?” You might find yourself in court proceedings, without having had time to financially plan for them. This article will explore the possibility of using a legal services provision order to fund family law claims.
What is a legal services provision order?
A legal services provision order is a court order that your ex-spouse or partner pays for your legal fees in advance. It can available to fund the following types of cases:
- Financial claims on divorce;
- Maintenance claims
- Financial claims for children of unmarried parents (called Schedule 1 claims)
- Financial claims after a divorce overseas (called Part III applications).
How you apply for an order depends on the type of family law proceedings you need to fund. Finance on divorce comes under Section 22 of the Matrimonial Causes Act 1973. However, Schedule 1 and Part III claims have slightly different rules which are governed by case law.
Funding financial claims on divorce.
Funding for financial proceedings can be in the form of a lump sum for legal services, or it can be paid in instalments. In order for the court to grant such an order to fund family law proceedings, they will be looking for you to demonstrate the following:-
1. You cannot obtain “appropriate legal services” without a court order. In practice this means that the court will assess whether you would be entitled to legal aid for your case, and if so, whether it is appropriate for you to access this funding. You can check if you would be eligible;
2. You cannot get a litigation loan – this is a loan provided by a private company for the purpose of funding litigation;
3. You cannot obtain a charge over property to fund the proceedings.
What the Court will take in to account?
In addition to the above, the court will also consider the following when deciding whether to make an order to fund family law proceedings:
1. Yours and your partner’s financial needs, resources, obligations and responsibilities;
2. The subject matter of the proceedings;
3. Any steps you have taken to avoid proceedings, such as proposing mediation;
4. Any possibility of the payer being prevented from obtaining their own legal services or being caused undue hardship;
5. Whether the payer has legal representation;
6. Your stance in the legal proceedings. The court may not grant an order where the stance taken is unreasonable;
7. Any amount the applicant owes to the paying party for costs in proceedings in which they are or were parties.
It is important to note that orders can only be used to cover future costs, and not costs which have already been incurred. This means that it is particularly important to seek advice on this as soon as possible, and our solicitors have expertise in this area.
Funding Schedule 1 and Part III Claims.
These applications are not explicitly covered under Section 22 which covers financial remedies, but they are covered under the previous rules from case law. The court will apply the Currey (No. 2) test which provides that the court must ask the following questions:
1. Does the applicant have assets they can deploy to meet the litigation costs?
2. Could the applicant raise a litigation loan? They must provide evidence of an unsuccessful application from two lenders;
3. Could the litigation be funded by way of a Sears Tooth charge? This is normally shown through a statement from their solicitors saying that they would not enter into such an arrangement;
4. Is there public funding available that would provide them with suitable legal representation?
5. Has the applicant taken such an unreasonable stance in the litigation that the court is dissuaded from making the order?
The applicant will also need to provide a comprehensive budget in support of their application which a breakdown of the costs required. Furthermore, the court should be satisfied that the respondent to the application can afford their legal costs as well as those of the applicant. Such awards are limited in the first instance to the conclusion of the financial dispute resolution hearing (often the second hearing of three in proceedings).
Speak to us about how to fund family law proceedings.
Please contact our lawyers for initial advice on options for funding family law proceedings. Send us a ‘call back request’ and we will call you (usually within 12 hours) to discuss your options.
You may be interest to read our guide to consent orders and whether you need one.