Since the demise of practically all legal aid, how you fund legal expenses is now a genuine issue, especially in family law cases.
You might not have qualified for legal aid in any case (under the previous system) as you have too many assets, even if your capital is tied up and you have no real income. Possibly you are the stay at home parent with no income and your spouse is the one who works? He or she will be able to afford the cost of hiring a family law solicitor which may put them in a more favourable ‘negotiating’ position.
More than a glimmer of hope
However, all it is not a hopeless situation. Since 1st April 2013, the law allows the court to make legal services orders in proceedings for financial relief in connection with divorce or separation. This may offer a fighting fund either in instalments or as a lump sum.
Tips on securing a successful application
To ensure a successful application, you must demonstrate that:
1. You would not be able to reasonably secure appropriate legal services
2. You cannot reasonably secure a loan to pay for legal services. This would need to be proved from a high street lender and also from a specific litigation lender
3. You are unlikely to be able to obtain legal services by the granting of a charge over assets that are to be recovered.
In addition, the amount of funding will have to be carefully established and budgeted for, but it will rarely extend beyond the financial dispute resolution hearing (FDR), the penultimate hearing in the proceedings.
However, this is a useful tool in the proceedings to make sure that both parties are placed on an equal footing in terms of the legal support they receive. Furthermore, when a lump sum is ordered to cover legal costs, an order could be made at the same time, that in the event it is not paid, then property is sold to secure payment.
Before such an application is made, consideration with regards to mediation will be required and the measures taken first of all to avoid the proceedings – which should be expected anyway.
Naturally, the court will also consider the parties' financial needs and resources, but then you are not going to be considering making such an application unless you reasonably expect to be successful.
This gives more than a glimmer of hope for those who need proper legal advice and assistance in circumstances where they would otherwise not have the opportunity to access it, and as a result feel that they are the poorer for it and under pressure to agree with whatever is being offered.
For more infomation
For confidential advice and support on all family law matters, please contact Milton Keynes family solictor John Egan.