Do you know what a Legal Services Order is?
You can get a Court Order requiring the other party to provide funds for you to take legal advice!
From the 1st April 2015 the Family Courts have had power to make what is known as a Legal Services Order. This is a type of interim Order which obliges one spouse to make provision to the other party for their legal costs. Although this in practice appears to be a massive change to the Courts powers under the existing matrimonial legislation, in practice it may make little difference.
Previously, it was possible for the Court to make an allowance within an application for Maintenance Pending Suit under the Matrimonial Causes Act 1973 to cover legal costs. This new provision however goes beyond the Courts power to make an allowance in Maintenance Pending Suit Proceedings. The historical threshold was set at a very high bar and required the Applicant to show that if they had assets they could not reasonably be used towards the payment of legal fees, or that they could not raise a loan or could not provide security for legal fees. This test to a large extent is mirrored by the new test.
The Court has power to make a Legal Services Order as a standalone matter and it does not need to form a lump sum or Periodical Payments Order and is therefore a new form of Order. The Order can be made for a specified period or for a specified part of the Court proceedings relating to divorce, nullity or judicial separation and require one party of the marriage to pay the other party an amount for the purpose of enabling them to obtain legal services for the purpose of the proceedings.
In determining the outcome of the Order there are a number of factors that the Court are to have regard to namely the income earning capacity, property and other resources which each of the parties have or is likely to have in the near future. As far as earning capacity is concerned, that includes any increase in earning capacity which in the opinion of the Court would be reasonable to expect either party to take steps to acquire. The Financial needs, obligations, responsibilities of the parties either now or in the foreseeable future, the subject matter of the proceedings including the matters in issue, whether the party paying is legally represented and what steps have been taken by the Applicant to avoid all or part of the proceedings, whether by proposing or considering mediation or otherwise, the Applicant’s conduct in relation to the proceedings, the amount owed by the Applicant to the paying party in respect of costs and the effect of the Order or a variation on the paying party, in particular the Court must consider whether the Order is likely to cause any undue hardship to the paying party or prevent them from obtaining legal services for the purpose of proceedings.
If you believe that you may be entitled to pursue an application for a Legal Services Order, Clarkson Hirst Solicitors are happy to provide advice and support in respect of the same and assist you in preparing an appropriate application.
If you would like an appointment please telephone the offices to arrange an appointment with Kerry Davies, Suzanne Willey, Sean Harkin or Jackie Partington, all of whom can offer you specialist advice in relation to this area.
Contact telephone number: 01524 39760
Article written by Kerry Davies, Solicitor, Director and Head of Family Department.