The Power To Make Orders

Sarah Crilly in the Family Law team at Ward Hadaway explains what a Legal Services Order is and factors the court has to take into consideration before making one in a divorce case.

Choosing to divorce is an extremely difficult and emotional decision, it can feel very isolating and the financial implications can also stack up. This sometimes leaves those involved reluctant to seek advice for fear they will be unable to afford it.

At Ward Hadaway we are often instructed by clients who find themselves in that position when they separate from their partner. We appreciate that going through a divorce is incredibly difficult for everyone involved. Expenses often start to spiral as soon as the divorce process starts. There are legal fees, court costs, new living expenses and a myriad of other things to take into account.

It’s therefore vital for us to help our clients alleviate some of the stress by reviewing the changing financial circumstances in which they find themselves.

In certain situations, that might mean we apply for a Legal Services Order under Sections 22ZA and 22ZB of the Matrimonial Causes Act 1973.

What is a Legal Services Order?

A Legal Services Order is an Order requiring one party to pay money to the other party to enable them to obtain legal services. Orders can be limited to suit particular circumstances and they can include funding for mediation. They can be a oneoff payment, or made in instalments, for example on a monthly basis.

If someone is unrepresented, involved in divorce, nullity, judicial separation or Civil Partnership dissolution proceedings or related financial proceedings, they may be able to seek a legal services order to help them with their legal costs.

By virtue of section 22ZA (1), the court may make an order, or orders, requiring one party of the marriage to pay to the other an amount “for the purposes of enabling the applicant to obtain legal services for the purposes of the proceedings.”

Factors which the court has to take into consideration:

Before the court can make a Legal Services Order it has to be satisfied that, “without the amount the Applicant would not reasonably be able to obtain appropriate legal services…”.

The Applicant would therefore have had to explore other means of securing funding including cashing in savings or investments, whether they would be eligible for a loan and/or whether they could obtain a Charge over other assets of the marriage.

The court must also consider the factors set out under Section 22ZB when determining an application, including:

– (a) The parties current and future financial circumstances;

– (b) The current and future “needs, obligations and responsibilities” of the parties;

– (c) The subject matter of the proceedings;

– (d) Whether the other party has legal representation;

– (e) Any action taken by the Applicant to avoid the need for the application to be made.

What Orders can the court make?

The court can order the Legal Services Order to be made by way of instalments or by lump sum and payment can be deferred until the conclusion of the proceedings.