Can I get my spouse to fund my legal expenses?

Family court proceedings can be expensive. That is why every reasonable effort should be made to resolve family disputes out of court. But sometimes this is simply not possible.

And this can obviously lead to severe difficulties for a party who cannot afford the legal costs involved in contested court proceedings. This is especially a problem when the other party has the funds to pay for good lawyers, potentially leaving the less well-off party at a serious disadvantage.

What can the less well-off party do to level the playing field? Legal aid is no longer available for most types of private law family matters, and many litigants have no other way of raising funds.

But there is one possibility.

It may seem to be an odd idea to many but it is possible, in certain circumstances, to request the court to order your spouse to pay a sum to your solicitors, to cover their fees for representing you. Such an order is called a ‘legal services payment order’.

What exactly is a legal services payment order?

As the name suggests, a legal services payment order is intended to only cover the costs of legal services in those particular proceedings, and possibly only part of the proceedings. It covers legal advice, representation at court and any form of alternative dispute resolution, such as mediation.

The order can be in relation to not just legal costs to be incurred, but also in relation to costs already incurred.

The order can require payment in one lump sum, or by instalments, which may be for a specified period.

Note that at the end of the proceedings the court may require the party who received the payment to repay such part of the payment as it considers appropriate. The court can even order full repayment if receiving party was unsuccessful in the proceedings for which the payment was made.

When will a legal services payment order be made?

As might be imagined, there are strict rules as to when a legal services payment order will be made. The following points should be noted in particular.

Firstly, the orders can only be made in proceedings for divorce, nullity of marriage or judicial separation, and are intended to cover the costs of a financial remedy application within those proceedings. (There are other similar procedures available to cover the costs of certain other types of family proceedings.)

Secondly, the applicant for an order will have to show that they do not have the funds to pay for legal services. They will also need to show that they have no other reasonable way of raising the funds.

Thirdly, the court will consider any steps that the applicant has made to avoid the proceedings. Accordingly, if the applicant has failed to attempt to resolve the matter by agreement then the court may not be prepared to make an order.

Fourthly, the court will consider the merits of the applicant’s case in the proceedings that the order is intended to cover. If their case is doubtful, then it is less likely that the court will make the order.

Lastly, the court will want to be satisfied that making the payment will not cause the other party undue hardship, or prevent them from themselves obtaining legal services for the purposes of the proceedings.

Am I likely to get an order?

The circumstances in which legal services payment orders are made are quite unusual. But they do happen. Only last month a High Court case was reported in which a wife was ordered to pay the sum of £95,000 to cover the husband’s legal expenses in his financial remedy application, £58,000 of which had already been incurred.

We can advise you as to whether you could obtain a legal services payment order. To find out more, and to get started with one of our specialist lawyers, click here.