Funding and when may it be available
A coalition of questions led me to think about legal services orders: the orders which enable judges, in the view of some husbands, to force them to pay their wives to sue them. To the more enlightened, it enables family courts to require the financially more robust party (a husband (H), say) to provide from assets controlled by him enough to ensure Family Procedure Rules 2010 r 1.1(2)(c) is complied with: that both ‘parties are on an equal footing’. In other words, yes, that he must release cash to ensure his (former) wife has enough to pay her own lawyers. At a time when so many spouses are acting in person in family proceedings, I wonder how many parties – mostly it will be wives or mothers – are applying for orders.
These thoughts were given prominence by press reports that Princess Tessy of Luxembourg had conducted her own financial relief proceedings; though had she not wanted to I am sure funds would easily have been made available to fund her own lawyers. By contrast, a new client of mine had been advised by previous lawyers – three at least, as far as I could see from her papers; and none seem to have advised her to ask the court to order cash from her former husband, to for representation and for train travel to the distant court where he was conducting their matrimonial financial relief proceedings.
‘Family proceedings’ for present purposes, means proceedings which happen in the family courts (ie Family Division of the High Court or the Family Court (formerly county courts)). Mostly the proceedings dealt with in the family courts are:
- Children proceedings (often called ‘private law’)
- Care (or ‘public law’) proceedings
- Domestic abuse and occupation order proceedings
- Financial proceedings after divorce (ie under Matrimonial Causes Act 1973 (MCA 1973))
- Financial relief for and in relation to children (Children Act 1989 Sch 1)
Parents and children in proceedings under 2 will have legal aid always. Those who are financially eligible are entitled to legal aid under 3. Defended divorce is very rare. Unless any human rights issues arise (regarded as ‘exceptional’ under legal aid legislation), legal aid in children proceedings will only be available – again very rare – for a child who is joined. Parties who have had legal aid for domestic abuse may be entitled also to legal aid under 1, 4 and 5; but not otherwise.
The question of payment by one spouse to another arises from 4 (and for parents under 5 – probably: the law is not entirely clear). That is what this note deals with.
Funding for financial relief proceedings: legal services orders
So what funding may be available in financial proceedings under divorce legislation? Can one materially weaker spouse (say, the wife (W)) claim funding for such proceedings from the other spouse (H)?
MCA 1973 s 22ZA(2) says a party to ‘proceedings…for financial relief’ can seek an order for payment for ‘legal services’ (as defined by s 22ZA(10)) (s 22ZA(1) is about funding divorce costs). The presumption is it will be the financially weaker spouse only who will apply for the order, a ‘legal services order’. Section 22ZA enables a spouse to seek funding to employ lawyers from her spouse. I am sure that if Princess Tessy of Luxembourg had wanted to apply for a legal services order it would have been granted. By all accounts the Prince had the necessary cash.
In a case where the means of the parties are more routine, if a husband has his own lawyer, the question must be: why should not H’s expenditure for a wife’s lawyers where she cannot pay from her own means be balanced – at least in part – by him for lawyers of her choice? Section 22ZA provides a statutory basis for her to make such an application to the court.
If the court is to make an order, it must be satisfied that there is no other source of funding available to the applicant spouse (s 22ZA(3)) eg a bank loan or other borrowing (s 22ZA(4)(a)) or a loan charged on property (s 22ZA(4)(b)). And MCA 1973 s 22ZB sets out the factors about the parties’ circumstances the court must take into account before it makes an order.
At a time when so many wives of modest means are presenting their own finance cases, I wonder how many are using legal services orders to help them to finance their own lawyers?