On our page “How do I pay for my divorce?” we talk about the possibility of obtaining a legal costs allowance from the other party if you have no money yourself to pay for your legal services. This is now part of the Statute Law, and these kind of orders are called ‘Legal Assistance Payment Orders’. The starting point is that the courts want to ensure “a level playing field.” They do not like the situation where one party can afford an expensive legal team, and the other party is struggling to present their own case.
To get one of these Orders, obviously one side has to be able to afford to pay it, or there must be sufficient liquid assets for the costs to be drawn down. If neither party has enough money but there is, say, a joint fund of savings, then an order can be made to draw down that fund, generally to both parties equally.
On the other hand, the court is mindful that these orders still have a financial impact, either meaning less money is available for maintenance, or there are fewer assets at the end to divide. So the court has to be satisfied first that the party applying for the order cannot reasonably pay for their legal services by other means. For example, if someone has other property that they are not living in, they might be expected to borrow on the security of it. If they have assets that they could offer as security, they might be able to obtain a litigation loan and the party applying has to set out a budget of what they think will be spent. These budgets can be quite complicated, because often the courses of action that might be followed depend on what the other party does. For example, a financial application might look straightforward but if the other party conceals assets, there might be an extensive enquiry needed. For those reasons, making the application itself is not a particularly cheap exercise. However, often it is the best investment of ready money that a litigant can make, because if successful it then enables that person to carry on with the rest of the case.
We have written as if these applications only apply to financial matters. That is because the recent legislation is part of the Matrimonial Causes Act. However, we have had examples where we have, in effect, made the same kind of application in Children Act proceedings. They are however much rarer.
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