Family law: How will I fund my legal costs?

A question which we are frequently faced with. One option is to ask your spouse or civil partner to pay those costs via a Legal Services Payment Order

What are Legal Services Payment Orders (LSPO) and what are the pitfalls.

LSPO’s came into force in 2013 under sections 22ZA and 22ZB Matrimonial Causes Act 1973. Under these provisions an application can be made to the Court for an order requiring the other party to assist with the costs for legal advice and representation and any other form of dispute resolution such as mediation. However, in practice I think it is unlikely that the costs would be proportionate if only seeking enough funds to mediate.

When deciding to make an order the Court has to consider the relevant provisions set out below:

1. 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;
2. the financial needs, obligations and responsibilities that each of the applicant and the paying party has or is likely to have in the foreseeable future;
3. the subject matter of the proceedings, including the matters in issue in them,
4. whether the paying party is legally represented in the proceedings;
5. any steps taken by the applicant to avoid all or part of the proceedings, whether by proposing or considering mediation or otherwise;
6. the applicant’s conduct in relation to the proceedings;
7. 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
8. the effect of the order or variation on the paying party, including whether the order would cause undue hardship to the paying party or prevent the paying party from obtaining legal services for the purposes of the proceedings.

The most well-known case in relation to this type of application is Rubin v Rubin. In that case the applicant wife sought an order to cover historical legal costs. Importantly she was not seeking support for future costs. The Court could not make a LSPO unless it was satisfied that without one the applicant would not reasonably be able to obtain appropriate legal funding. Given there were no further proceedings or legal costs her application failed.  There has been another recently reported case on this type of application where the applicant mother in a Children Act case was successful in obtaining funding in part in relation to some of her historic costs, but this was only because there was ongoing litigation.

Points to consider:

• It is important if you are considering making this type of application that it is dealt with in a timely manner.
• You will need a carefully prepared costs schedule. Most solicitors will require payment upfront to make this application and they can be costly and may not be recoverable as they are historic.
• This type of application is not a backdoor to obtaining costs.
• The litigation must be continuing.
• It is important to have made all necessary enquiries and tried other routes to obtain funding and have the relevant evidence.
• If your application for a LSPO does not succeed, you could be liable to a costs order.

Before you can apply for a LSPO, you will need to have exhausted all other funding options such as:

• A bank loan.
• A specialist litigation loan. Your solicitor will be able to tell you more about applying for this sort of loan.
• Credit cards.
• A loan from a friend or family member who may be willing to assist you with your legal costs. It is important to be clear on the terms of the agreement so that these can be considered as repayable and not soft loans.

Speak to our specialist family lawyers today

IBB Law’s family law practice can provide expert advice on all family law issues. Should you be interested in discussing any aspect of your case, particularly how you might fund any proceedings then please email familylaw@ibblaw.co.uk or call 03456 381 381.