If, after all the methods of mediation and negotiation available, a separated couple is unable to reach an agreement on how their lives will move forward, there will be only two options left: asking the Courts to get involved in the situation, or simply walking away from it. In this instance, family law expert, Karen Andrews shares her insight into the road that lies ahead.
The first thing to explain two very important things. Firstly, if the Court is called upon to get involved in the matter of a separating couple, it is to assist, and not criticise either party. Secondly, and this can often come as a shocking surprise to many former spouses, if a party does walk away, the couple will remain financially linked and vulnerable to future claims against each other, possibly years down the line.
Many would-be litigants are understandably put off by the Court process. In my experience, many are put off by the costs involved in making an application, particularly if the spouse/partner is in a better financial position to afford legal representation that can cause delay in a lengthy court case.
HOWEVER, there is a little-known provision that was introduced in 2013 under the Matrimonial Causes Act 1973 (MCA) / the Civil Partnership Act 2004 (CPA) whereby the Court can order one party to pay the other party’s costs for receiving advice and assistance as the case progresses. This is known as a “Legal Services Payment Order’ or ‘LSPO’ and is designed to create a level playing field between two parties.
LSPOs are available for the following applications:
- divorce, dissolution or judicial separation
- any connected financial proceedings
A request for an LSPO is made at an appropriate stage by way of a separate application, and the ‘advice and assistance’ other forms of dispute resolution, including mediation. It also covers enforcement, should that be necessary after a Financial Order has been made.
Having said that, the Court will only grant an LSPO if it is satisfied that:
- without funding, an individual will not reasonably be able to obtain appropriate legal services for the proceedings
- an individual is unlikely to be able to secure funding or a loan for fees elsewhere and cannot defer payment of legal fees by ‘charging’ an asset to be recovered during proceedings
Each case is looked at individually, but the Court will rarely require someone to sell or charge their home, or to deplete a modest fund of savings. Nor will it usually expect someone to take out a loan with excessive interest payments. It may, however, order the repayment of some/all costs granted under an LSPO at the end of the proceedings, if deemed fair.
The LSPO will only cover costs of the current lawyer (to avoid them withdrawing their services) and will not cover the costs of any previous representation.
An LSPO covers costs up to a specific stage of the proceedings, or for a specific time period. Depending on the case, it may be necessary to make more than one application, but each application will need to be accompanied by a detailed budget.
The Court will generally limit an initial LSPO to exclude the costs of a final hearing, allowing any disputed issues (and the merits of a further LSPO) to be reconsidered later.
So, LSPOs can be a lifeline in some cases, removing anxiety (and avoiding damaging delay) where funds are limited, but the court’s help is needed.
