Are you worried about how you will be able to pay for good quality divorce advice and representation?
There are a growing range of options including the ability to force your spouse to make regular payments to for your divorce legal costs. This article, and the one that will follow next week, provide an overview.
The risks for partners without finance
Husbands or wives are sometimes unable to afford specialist legal representation. There are real risks in this situation especially when the other partner has income or assets that they can use to pay for their own legal advice and when matters are not straightforward.
Legal aid used to provide cover in these situations but that is no longer the case for the vast majority of people.
The spouse without finance might think that they have no alternative but to accept what is being offered to them without even getting advice about their full entitlement.
The spouse with finance is in a very strong position here. She or he can play on the other partner’s position, stirring up fears of poverty and even bankruptcy if the partner does not take what is offered.
The partner without finance is often in a homemaker role within the family. Threats of having to sell the home are frequently made in such situations, further increasing pressure on the unfunded partner to co-operate and accept what is being offered.
Even when the partner without funding takes legal advice, that advice is often compromised by fears of the available funding running dry. This can lead to corners being cut – choosing not to make an application to force disclosure of an as yet undisclosed asset or bank account, for example, or choosing not to get an expert valuation on a business, property, pension or other investment.
In summary, not having access to funds to pay for legal representation leaves those individuals at risk of being manipulated by threats from the funded party or of making settlement decisions without full information or understanding the implications or reasonability of those decisions.
Litigation loans
It is possible to obtain a range of specialist loan products to help meet divorce legal costs where legal advice and representation is required. If you need funding then you need to consider these opportunities even if you have an aversion to the idea of loans.
You can look at a couple of providers by clicking on the links at the end of this article.
Until recently, loans to pay for legal costs were often not possible because it was necessary to get both partners to agree to a charge being placed on the matrimonial home. The partner who had their own means of paying for legal fees were often reluctant to agree to this – doing so after all would remove an advantage that they otherwise had over the partner without finance. Often the partner without funding was reluctant to go down this route because it meant revealing to their partner that they were planning to take legal advice.
The other problem lay in how the repayments on loans were going to be made each month.
The more modern loans are sometimes able to be agreed without this requirement. The impact is that finance can be secured for some unfunded litigants removing the risks set out above of having to act with limited or no advice.
Legal Services Orders – Asking a court to order your partner to pay for your legal costs
There is another way to meet legal fees. You have the right to apply to the court asking for an order that your partner should pay regular sums to your legal advisers in order to meet your forecasted legal costs. This secures the position so that you can take proper advice and all of the steps required to protect your position now and into the future.
The statutory rules relating to this can be found by clicking on this link although they do not make for interesting reading. We summarise what they mean after the link and in the next article.
http://www.legislation.gov.uk/ukpga/2012/10/section/49/enacted
Essentially, the person applying for a legal services order has to convince the court that they do not have any other reasonable means of accessing the legal advice and representation they need to pursue their case.
This means that the application to the court is one of the last avenues you will explore.
You will have to show that you have made appropriate enquiries about litigation loans, such as those discussed above, unsecured bank loans or alternatively secured loans with a charge on a property – almost like a second mortgage. Your lawyers will have to explain why they will not be able to defer charges until some later date.
If you applied to the court without making enquiries then your application is likely to be unsuccessful.
Rest assured that you will not be expected to take out any loan and certainly not one with excessive interest elements.
If the interest being charged on a loan is reasonable, however, then choosing not to take the loan just because it incurs interest could result in your application failing.
In our blog article next week we will be looking at some of the other considerations in this area and how they might impact you.
Let us help you
If you are going through separation or divorce, or you know somebody who is and is worried about legal fees, or if you have any questions about divorce or family law then email us confidentially here at Family Law in Partnership on hello@flip.co.uk. Alternatively you can telephone 020 7420 5000 and ask to speak to one of our divorce solicitors in London.
Links
Please note that the two funding providers beneath are only provided as examples of what is available. Other services may be available and no advice is given on the suitability of any particular provider.