Whilst the usual scenario is that each spouse meets their own legal costs, it is possible to seek a financial contribution from your husband or wife towards fees.
Part 1: the divorce costs
The court may order a Respondent to pay the costs of a Petitioner, but these costs will be limited to the costs incurred in relation to the actual divorce procedure itself, and not the resolution of the financial division.
Part 2: the financial settlement costs
These are scenarios in which your spouse will pay for some or all of the legal fees you incur in achieving a final financial settlement on divorce:
- The court makes a Legal Services Order, to ensure that you will be able to obtain appropriate Legal Services during proceedings;
- The conduct of your spouse before or during the proceedings is such that the court orders them to pay part or all of your legal fees (see earlier post Who pays the legal costs?).
- Your spouse voluntarily agrees to make a contribution, perhaps in mediation or in a collaborative law agreement.
Legal Services Order
The High Court dealt in November with an application for a Legal Services Order*. A two year marriage between AM and SS** aged 28 and 45 respectively, ended in separation, and at the point of the hearing the wife sought a Legal Services Order of £226,000.
The wife asserted that her husband could afford to pay the Legal Services Order that she sought either from his own resources and/or from funds regularly provided to him or for him by his father.
The judge held that the only asset which was available to the husband was equity in a property of £200,000. He continued “It is, however, clear on the evidence that the husband’s legal costs will continue to be supported or funded by his father”. He concluded that, as the Wife had no other options regarding funding, whether through a legal litigation loan or a charge over an asset, she was entitled to a Legal Services Order.
He awarded a charge of £150,000 to be placed on the property, in favour of the wife, to cover the payment of her legal fees.
Ultimately, the judge’s priority was to ensure that the couple was placed on an equal footing, and as the Husband’s legal fees would be met by his father, he felt that equality trumped the risk that the parties might be acting disproportionately, by potentially “exhausting all the resources available to them in litigating this case”.
*When deciding whether to make a Legal Services Order, the court will look at:
a) the income, earning capacity, property and other financial resources which each of the applicant and the paying party has or is likely to have in the foreseeable future,
b) the financial needs, obligations and responsibilities which each of the applicant and the paying party has or is likely to have in the foreseeable future,
c)the subject matter of the proceedings, including the matters in issue in them,
d)whether the paying party is legally represented in the proceedings,
e)any steps taken by the applicant to avoid all or part of the proceedings, whether by proposing or considering mediation or otherwise,
f)the applicant’s conduct in relation to the proceedings,
g)any amount owed by the applicant to the paying party in respect of costs in the proceedings or other proceedings to which both the applicant and the paying party are or were party, and
h)the effect of the order or variation on the paying party.
**AM v SS 2013 EWHC 4380 (Fam)
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