Hope for those who think they cannot afford the legal costs of divorce

Hope for those who think they cannot afford the legal costs of divorce

The much-trumpeted changes to legal aid which came into force last month have, hidden away in the legislation, created a chance for some people to obtain funding to proceed with divorce.

There has been provision for a spouse to claim, where applicable, funding from the other spouse if they do not have the resources to pay for legal representation.This was covered by the 'maintenance pending suit' legislation within the Matrimonial Causes Act 1973, however it has now been explicitly provided for in two separate sections of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (“the Act”).

The less well-off spouse, who may have worked part-time for most of the marriage or stayed at home and brought up the children - may not have any assets in their own name, or have any access to actual liquid cash with which to pay a lawyer. Under the new Act they can now make an application to court for the payment of their costs by the other party to be considered. Under the new sections of the Act there is provision for 'orders for payment in respect of legal services' - effectively known as 'legal services orders'.

The main message to be taken is that, as long as the disadvantaged spouse cannot reasonably afford legal advice or representation - either through borrowing, liquidating assets or through third party funding - then there may be a case for claiming a legal services order from the other spouse. This is of course as long as the other spouse has the sufficient and appropriate ability to provide any such assistance. We anticipate that the ability of one spouse to apply for their costs to be paid by the other will be very controversial and could be subject to abuse.

With the new regime firmly in place it will be interesting to see how regularly this part of the Act is utilised.