How to Pay for a Divorce – Legal Services Orders
A Legal Services Order is an Order made within Matrimonial Finance proceedings requiring one spouse to meet the costs of the other so as to enable them to obtain appropriate legal advice. The Order may require the assistance to be provided by way of instalments (which may be secured) or in one lump sum payment.
When considering an application for a Legal Services Order within divorce proceedings, the Court will have regard to the parties’ needs, resources, obligations and responsibilities. It will also bear in mind the overriding objective to deal with cases justly.
The pre-conditions for applying for a Legal Services Order include the following:-
a) The Applicant should not otherwise be able to secure appropriate legal services in respect of their divorce.
For the avoidance of any doubt, this does not mean that the Applicant needs to prove that they are ineligible for Legal Aid. In a recent case involving significant assets, the Court found the suggestion that the Applicant should proceed using Legal Aid as “farcical”.
b) The Applicant cannot reasonably secure a loan to pay for their divorce costs.
As a general rule, refusals from two separate commercial lenders will usually be sufficient. If a litigation loan is offered at a high rate of interest, it has been found that it would be unreasonable to expect the Applicant to take this unless the other party undertakes to pay the interest if the Court finds at the end of the divorce that this would be just.
c) The Applicant is unable to grant a charge over their assets.
Whether it is possible or reasonable to expect the Applicant to enter into a charge is highly fact specific. For example, if it is likely that a property will be sold at the conclusion of the divorce, it would probably be found to be reasonable to expect the Applicant to enter into a charge.
The Court has held that a Legal Services Order can be made in respect of historic unpaid costs if it will prevent the Applicant from obtaining appropriate legal services in the future.
Should you require any advice or assistance with your divorce or with regard to your financial position following your separation, please do not hesitate to contact Ian Butterworth through this firm’s Family Law Department on 01202 636223. Ian is based in this firm’s Bournemouth office and is a Resolution Accredited Specialist in complex matrimonial finance cases.
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