Should your Spouse Pay your Legal Fees?

Are you in divorce and financial proceedings, struggling to pay for your legal fees and ineligible for Legal Aid? All is not lost as you may be able to apply to the Court for a Legal Services Payment Order (LSPO) so that your ex-spouse pays your costs, or some of them, for you.

By securing a LSPO, this may enable you to pay for advice and representation from a solicitor or barrister. It may also cover Court fees and other expenses i.e., disbursements, such as experts fees you might have to pay during the course of the proceedings.

A LSPO is an interim order made against your ex-spouse meaning they must pay you a lump sum towards your legal costs, or make payments by instalments, either immediately or deferred.

Applying for a Legal Services Payments Order

To apply for an LSPO, applicants must submit the following:

• The application that is submitted using Form D11.
• Supporting statement outlining the rationale for requesting an order, along with evidence demonstrating the inability to secure alternative funding options, such as a loan.
• A draft order

Any such application must evidence costs incurred to date plus future predicted costs.

What does the Court consider when making a Legal Services Payments Order?

The family court considers the merits of an application for a legal services order in accordance with the Matrimonial Causes Act of 1973.

The Court will consider the following: 

• The income, earning potential, assets, and other financial resources that each party currently possesses or is expected to possess in the near future.
• The financial needs, obligations and responsibilities which each party has or is likely to have in the foreseeable future.
• The topics addressed in the proceedings, including the issues at hand.
• Whether the paying party has legal representation in the proceedings.
• Any actions taken by the applicant to prevent all or part of the proceedings, whether through mediation proposals or other means.
• The applicant's behaviour concerning the proceedings.
• Any outstanding amount that the applicant owes to the paying party related to costs incurred in the proceedings or in other proceedings involving both parties.
• The effect of the order on the paying party: for example if it would cause undue hardship or if it would prevent them from obtaining their own legal services for the proceedings. 

The Court will need to be satisfied that you have attempted to seek means of funding your legal costs from other sources. You will need, for example, to evidence the following:

• That you do not have assets that could reasonably be used to pay off the legal fees.
• That you cannot borrow money in the form of a loan, whether soft (from parents or friends) or hard (bank or a litigation loan). 
• That you have not been able to reach an agreement with your family solicitor as to a deduction of your costs from any settlement you receive within the proceedings: indeed, you will need to provide a letter from your solicitor confirming that they can no longer agree to work without funds.

When considering whether to grant the LSPO the Court has to weigh up the financial circumstances of both parties and consider the effect on the paying party.

If the financial circumstance of your ex-spouse is not clear the court will make “robust assumptions” about their ability to pay.

The Court will also consider the nature of the proceedings and your conduct in relation to whether the costs incurred are reasonable and whether you attempted to agree a payment towards your costs by your ex-spouse before issuing an application.

Claiming Legal Costs in Family Cases

Legal Costs Orders, where one party in substantive proceedings is ordered to pay the other parties costs, are rare in family proceedings. Generally speaking, each party bears their own costs, however if one party has behaved particularly badly within the proceedings then this may change. 

It’s important to note that an application for a LSPO is an interim order within main suit proceedings so the Court has more discretion to make a LSPO strictly in respect of costs.

Will I have to pay this money back?

You could have to pay some of the money back once the overall costs incurred become clearer. 

At the outset, it may be difficult to assess the parties precise financial position, so the parties will likely be working on the basis of estimates. If you have over-estimated this could mean that some of the money will need to be reimbursed.

This is likely to be offset against assets that are due to you within your financial proceedings.

Moving Forwards

If you believe that a LSPO may be something you require, then do seek legal advice from a solicitor as these orders, although not particularly common, can sometimes mean the difference between being represented or unrepresented within Court proceedings.

Contact our team of experts today for legal advice you can rely on.