It is possible to get orders from the court that your spouse should pay you a monthly sum to enable you to pay your divorce lawyers.
These applications are not to be made lightly and there is no guarantee that they will be successful.
You will need to consider the following ten points;
- Is it inevitable that the person applying for funding would not otherwise be able to reasonably obtain an appropriate level of legal services to enable them to conduct these proceedings?
- The court must consider all of the provisions in Matrimonial Causes Act 1973 (as amended) s.22ZB(i), to include, for example;
- The relative financial positions of the partners
- What the main legal case or application is about
- How the person applying for the funding has conducted him or herself, and
- The ability of and the impact upon the other partner if they are ordered to pay ongoing legal fees
- If the claim that the applicant needs legal funding for seems unlikely to succeed then the courts will be cautious about ordering the other person to pay legal fees. The less likely it is to succeed, the more cautious the court should be. They will not order wealthy partners to finance purely speculative applications with little or no prospect of success.
- The person making the application will need to show that they have tried to find other means of paying their own legal costs. It might be that the court will not expect the less wealthy partner to secure a charge against their home unless it is likely that the home will have to be sold once the proceedings are completed anyway.
- The applicant will have to show that he or she has explored the availability of getting a litigation loan from a reputable commercial lender. Just because the applicant would rather not have to take a loan does not mean the she or he can always choose not to. Two letters from commercial lenders rejecting loan requests is likely to be adequate proof that these efforts have been made.
- A partner cannot refuse to borrow a litigation loan just because it carries high interest unless, perhaps, the interest is very high. Even then, if the other partner agrees to pay the interest payments, rather than having to pay all of their partner’s legal costs, then this might lead a court to expect that the loan should be taken out on that basis.
- If the applicant’s lawyers agree to defer payment of their fees until the case is completed, then the application for the other partner to pay their legal fees will fail. Your solicitors will need to file a statement confirming that they are not prepared to go without being paid until the case has completed.
- If the person asking for legal costs provision promises to repay what has been paid to him or her by their partner once the case is concluded then this may be influential on the court’s decision. In these situations the provision is clearly a loan of sorts rather than a gift.
- Be clear about how much is required and what legal services are going to be provided for that cost. Legal costs provision orders can be obtained for preliminary attempts to resolve matters such as mediation.
- Do not ask for costs as if the legal case is inevitably going to go all the way to a final contested hearing. Instead, ask for costs leading up to and including the Financial Dispute Resolution hearing, or equivalent pre-trial court appointment. You will then need to submit a further request for the estimated costs up to and including the final contested hearing if that cannot be avoided.
Let us help you
If you are thinking about or going through divorce and you are worried about how to afford legal fees then get in touch with us. Family Law in Partnership are a leading firm of divorce solicitors working in London. You can contact us on hello@FLiP.co.uk or telephone us and ask to speak to one of our divorce lawyers on 020 7420 5000.