Divorce and Financial Remedy: What If I Can't Afford My Legal Costs?

Following the withdrawal of legal aid for most matters concerning divorce and financial remedy, many people have struggled to fund their legal costs.

However, all is not lost.

With the right guidance from an expert family law solicitor, you may be able to secure assistance in funding your legal representation, creating a more level playing field in the legal arena.

In this blog post, we'll explore the avenue of Legal Service Payment Orders (LSPOs) and how they can potentially alleviate the financial strain.

What is a Legal Services Payment Order?

A LSPO is an interim order that you can apply for if you need money from your spouse (or former spouse) to settle unpaid legal fees. This money may also be for future hearings.

Essentially, an LSPO will enable you to pay for the services of a solicitor, barrister, court fees, experts or other legal fees.

What are the requirements to apply for a Legal Services Payment Order?

An application for a LSPO must include particulars about the remaining legal fees you have already incurred, and a detailed estimate for the future anticipated work.

The court can also limit the LSPO to a portion of the proceedings (e.g. for financial dispute resolution only).

However, if more funds are needed, the court can make an order for an additional LSPO. It can also vary the terms of a previous order if there is a change in circumstances.

The court must be satisfied that you have attempted to seek funding from other sources before applying. You will need to prove the following;

• You do not have assets that could be reasonably used to pay legal fees.

• You cannot borrow money, whether a soft or hard loan, from parents or a friend.

• You cannot obtain a commercial loan from a bank or a litigation loan. This evidence will need to be in the form of your application to a commercial lender and/or family law litigation loan provider, and them refusing your application in writing.

• You have not been able to come to an arrangement with your solicitor regarding a deduction of costs from any settlement you may receive. Again, a letter from your solicitor confirming they will not enter into such an arrangement is key to a successful outcome.

Mostyn J made clear in the case of Rubin v Rubin (2014) that the court cannot grant a LSPO unless it is satisfied that without the payment, that party would not reasonably be able to obtain appropriate legal services for the proceedings.

What does the court consider when making a LSPO?

When considering whether to grant a LSPO, the court must have regard to the following:

• The income and earning capacity of both parties;

• The conduct of the party which is paying for the LSPO and especially whether they attempted mediation;

• The effect the LSPO will have on the party paying. i.e. if they paid for their spouse’s legal fees, would they be able to continue affording their own legal services?

• The financial needs and obligations of both parties, whether each party is legally represented, any attempts made by the applicant to avoid proceedings, and the amount already owed to the paying party in respect of proceedings.

It is important to note that if you make a successful LSPO application to the court, the judge can order your opponent to pay your solicitor’s costs of making the applications.

If you are finding it difficult to pay your legal fees or are delaying divorce/financial remedy proceedings due to worries about legal costs, our divorce and family law specialists based in Hove, Hassocks, and Horsham can assist with all aspects of interim applications within financial remedy proceedings, such as an LSPO.