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Family analysis: With effect from 1 April 2013, the court may order a party to make payment to their spouse/civil partner for their legal costs, known as a legal services order.

What are the key changes and what criteria will the courts apply?

Original news

Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Commencement No 7) Order 2013, LNB News 05/04/2013 67

SI 2013/773: Provisions enabling a court in divorce, nullity of marriage or judicial separation proceedings to order payment by one party to another for the purposes of securing legal services are commenced on 1 April 2013.

What are the key changes?

The Legal Aid, Sentencing and Punishment of Offenders Act 2012, ss 49-54 make changes to the Matrimonial Causes Act 1973 (MCA 1973) and the Civil Partnership Act 2004 (CPA 2004) allowing the court to order a party to make payment to their spouse/civil partner for their legal costs which will be known as an order in respect of legal services or a legal services order. This type of order will be available in proceedings for divorce/dissolution/(judicial) separation and in connected financial relief proceedings. The new provisions set out the circumstances in which such an order may be made and the factors which the court must take into account.

How will the provisions be applied by the courts?

The new MCA 1973, s 22ZA (and the corresponding sections of the CPA 2004) set out the factors and the approach to be taken by the court:

o 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, andthe applicant is unlikely to be able to obtain the services by granting a charge over any assets recovered in the proceedings ie a Sears Tooth agreement

Can the court place a limit of the amount of cost, the proceedings covered or the period of time for which the legal services order will apply?

The scope of the order may be specified by the court ie:the legal services order may be for a specified period of time or for the purposes of a specified part of the proceedingsit may provide for payment or all or part of the amount ordered by instalments, which may be securedpayment of all or part of the amount ordered may be deferred

A legal services order may be varied at any time in the proceedings if the court considers that there has been a material change of circumstances since the order was made.

How are 'legal services' defined in the new provisions?

Legal services are defined as:

advice on how the law applies in the particular circumstancesadvice and assistance in relation to the proceedingsadvice and assistance in relation to the enforcement of decisions in the proceedings or as part of the settlement or resolution of the dispute

In addition the new MCA 1873, s 22ZA specifies in particular that advice and assistance in the form of representation and any form of dispute resolution, including mediation, may be covered by a legal services order. It may be that 'any form of dispute resolution' could arguably include collaborative law and family arbitration--the current position isn't clear and may require judicial guidance.

Will previous case law on provision for legal costs within an order for maintenance pending suit apply?

The extent to which the courts will refer to earlier case law in relation to legal services orders remains to be seen. It is also arguable that a legal services order providing for one payment rather than a series of payments is akin to a lump sum rather than an interim periodical payments order or maintenance pending suit and as such may be subject to case law on lump sum orders, although it is notable that since Wicks v Wicks [1998] 1 All ER 977, the court cannot make an interim lump sum order.

Geraldine Morris, solicitor and head of LexisPSL Family .

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