Before 1 April 2013, in proceedings for divorce, maintenance pending suit for legal costs was governed by a progressive history of case law, dating back to the turn of the millennium. Following the changes to funding brought about by the Legal Aid, Sentencing and Punishment of Offenders Act 2012, the rules were codified into statute in sections 22ZA and 22ZB of the Matrimonial Causes Act 1973, creating legal services orders (LSO).
LSOs are payable either as a lump sum or in instalments and can include a charge over the paying party’s property to fund the applicant’s legal costs.
In order to make a successful application for financial assistance with legal costs, the applicant must demonstrate the following:
- He would not reasonably be able to obtain appropriate (considered within the context of the case) legal services for the proceedings without an LSO.
- He cannot reasonably secure a loan to pay for legal services
- He is unlikely to be able to obtain legal services by granting a charge over assets to be recovered.
An LSO may be limited to cover legal services of a specified description, including mediation, advice and assistance about financial remedy proceedings, settlement advice etc. The LSO can be time limited, to either a quantitative period such as a year, or for the life cycle of some or all of proceedings, e.g. up and including the FDR hearing.
As under previous practice, there is nothing to prevent the proposed payer offering to make a loan to cover the applicant’s legal costs.
To determine an LSO application, the court must consider a list of statutory factors:
- The parties’ current financial needs, resources, obligations and responsibilities and those they are likely to have in the foreseeable future.
- The subject matter of the proceedings, including the matters in dispute.
- Any steps the parties have taken to avoid the proceedings, for instance by proposing mediation.
- The effect of the LSO on the payer, and specifically the possibility of the payer being prevented from obtaining his own legal services or being caused undue hardship.
- Whether the payer has himself got legal If the payer says the issue is a simple one that does not require legal assistance on either side, most judges will not relish the prospect of both sides being in person.
- The applicant’s conduct in the proceedings (though not the respondent’s). This is the method by which an unreasonable stance might limit or terminate the legal costs provision.
- Any amount the applicant owes to the paying party for costs in proceedings in which they are or were parties
If you want to discuss your legal costs or a legal services order with one of our specialist family lawyers, contact us on 01234 889777 for a free consultation with a solicitor, based in our offices serving Bedford and Northampton.