UK: 'Fairness’ And ‘Equality Of Arms’ In Divorce

Last Updated: 18 April 2013
Article by John Darnton

When making financial orders on divorce (or dissolution of civil partnership), the court exercises a wide discretion. The court is specifically required to take into account a number of particular matters and, since 2000, judges have been specifically directed to exercise their powers in such a way as to produce a result that is 'fair'.

One practical difficulty that arises in many cases is that one of the spouses will be totally financial dependent upon the other and may not have immediate access to sufficient money to enable them to instruct a lawyer of their choosing. Now that the provision of Public Funding (formerly Legal Aid) has become something of a 'legal dodo', the situation is even more pronounced.

The court does have the power to make interim maintenance orders and for most of this century in appropriate cases it has been possible to seek to persuade the judge hearing the application to build into the overall interim maintenance figure an element to enable the recipient to meet ongoing legal costs. Effectively, where the payer (and it is usually the husband) has sufficient means, the judge can inflate the amount of the monthly payments to be made to enable the recipient to make payments to their solicitor. There are, nonetheless, certain hurdles that need to be overcome to successfully obtain such an order.

The applicant for such an order has to demonstrate:

  • that they have no other resources which they can use to pay legal fees. This may mean that any savings have to be spent first,
  • they have been unable to obtain Legal Aid or secure a litigation loan, and
  • they cannot persuade their solicitors to proceed on the basis of an arrangement whereby the solicitor gets paid at the end of the case out of the settlement that is ultimately awarded.

Understandably, solicitors can be reluctant to take on cases which may run for 12-24 months on the understanding that they will get paid at some point in the future. Whilst there are banks and other organisations prepared to lend to meet divorce costs such arrangements may not be available or appropriate in a particular case.

The court does not have the power to make interim capital orders, or direct that assets be realised to pay legal costs.

It is therefore noteworthy that, with effect from 1 April 2013, the court now has an additional power introduced by the Legal Aid, Sentencing and Punishment of Offenders Act 2012. This brings about the introduction of a new type of order which will be known as an order in respect of legal services or a legal services order. This will enable the court to order a party to make a payment to their spouse/civil partner for their legal costs.
Once again, however, things are not entirely straightforward and a number of preconditions will need to be met:

  • the court must not make a legal services order unless it is satisfied that, without the amount to be paid, the applicant would not reasonably be able to obtain appropriate legal services for the purposes of the proceedings or any part of the proceedings.
  • the court must be satisfied in particular that:
  • the applicant is not reasonably likely to be able to secure a loan to pay for the services, and
  • the applicant is unable to be able to obtain the services by granting a charge over assets recovered in the proceedings.

These hurdles are therefore very similar to those described previously and it will be interesting to see whether or not this new order actually brings about a positive change and makes it easier for somebody to secure an order that their partner pays their legal costs as the case progresses.

A legal services order may be worded so as to provide that it will be for a specified period of time or for the purposes of a specified part of the proceedings. It may also provide for payment of all or part of the amount ordered by instalments and payment of all or part of the amount ordered may be deferred.

A legal services order will therefore be a more flexible tool than the present "enhanced" maintenance order and could be used more creatively by a judge but only time will tell whether or not it will "level the playing field".

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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