Within divorce proceedings parties to a marriage often end up in situations where they cannot agree to a financial settlement. Either the husband, or the wife, can make an Application to the Court under the Matrimonial Causes Act 1973 for an Order dealing with financial matters resulting from the breakdown of the marriage.
Similarly, when couples separate there are sometimes disagreements as to arrangements for children. Either parent of a child can make an Application under the Children Act for a Child Arrangements Order.
In either of these circumstances, often one of the parties can afford legal representation, but one cannot. This is more often a situation where a husband to divorce proceedings can afford to see a solicitor but a wife is low on funds and income and is concerned as to paying for legal representation.
That can result in disparity between the parties and can create unfairness. Often the parent or spouse lacking assets and income may feel forced into a position where they accept an Order which they are not happy with.
The Court has sought to make provision for cases such as this to ensure that both parties can afford proper legal representation:-
1) Applications can be made within divorce proceedings for an Order for Maintenance Pending Suit, specifically for a Costs Allowance to meet ongoing legal expenses. This is not simply a Maintenance Order but maintenance that specifically requires one of the parties to the marriage to pay to the other maintenance to allow them to pay their ongoing legal costs.
A party to divorce proceedings can also apply for what is called a Legal Services Order under section 22ZA of the Matrimonial Causes Act 1973. Rather than an Application for monthly maintenance to pay ongoing legal expenses, such an Order can require one party to pay to the other a lump sum to meet legal costs. In order to be eligible for such an Order the receiving party must show that they cannot raise a litigation loan, that their legal representative is not prepared to accept payment at the end of the case and that the receiving party has no, or very little, assets of their own.
2) If Applications are made under the Children Act for Child Arrangements Orders, or financial claims for children, Schedule 1 of the Act enables an Application for interim costs by way of a lump sum or monthly periodical payments. In order to be eligible for such an Order, in addition to the eligibility requirements under the Matrimonial Causes Act the Court, in such an Application, must have regard to the reasonableness of the party’s position within the proceedings and the merits of their claim.
Such Orders are not widely known but can come in very useful to prevent unfairness to one party in proceedings when they cannot afford legal representation of their own.
If you think you are in such a position then please give us a call and we can discuss these options with you.
Druitts Family Solicitors can offer advice in the following areas:-