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Funding Your Divorce – Legal Services Order

17th September 2014

Legal fees are sometimes the inevitable consequence of an acrimonious breakdown in your relationship. They may be seen to add insult to injury given the uncertainties and fears people often experience at this time. Sometimes, one party holds all of the financial aces, so to speak, while the other seems not to have been dealt a hand at all. To generalise, if you have an arrangement whereby one party stays at home (usually the wife) while the other party works (usually the husband), this can create a fundamental inequality financially speaking.

Why should the person who goes to work have access to legal advice because they earn the money to afford this or have savings, while the other who supports them in this and has done for many many years, often sacrificing their own career be prejudiced? There are a number of ways in which this unfairness can be challenged. First, you should consider all the options for promoting a fair settlement. This must include mediation, negotiations between solicitors (which of course can be expensive), a collaborative law approach or arbitration.

Legal Aid is available for mediation depending on your financial circumstances (there is no other test apart from the financial merits for this) but all other routes incur legal costs. While they may not be as high as a case that goes to a final hearing in Court before a Judge, they can still be significant running into hundreds if not thousands of pounds depending on the case.

One difficulty with the non-Court options is to how to fund these if the other party (assuming they have some money) refuses to allow resources in their name to be used to pay for the fees. There is no way of forcing a person to contribute to the other person’s fees for the cost of the negotiations or to a collaborative law case. However, if one person unreasonably refuses to make such a contribution it could be relevant to the Court’s decision if a Legal Services Order is applied for.

In April 2013 a new power was given to family Judges to enable them to make interim payments for legal services orders to fund the cost of going to Court. If an Order is made it can be enforced by the sale of assets owned by the other party to the marriage. So if a man owns three Ferraris and refuses to contribute towards his wife’s legal fees, a legal service order could be made and enforced by selling one of the Ferraris!

Legal Services Orders are not automatic however, and the Court will want to see evidence that other options are not available to you. What else can you do to fund your case? Often family or friends can be called on to provide financial support. If that does happen it is vital that any money is properly loaned and that a Deed is drawn up showing that this is a loan which is meant to be repaid and not what the Courts call a “soft loan”, in other words one which will never in reality be repaid.

Commercial options are available of course, and these are various. Credit cards, bank loans, and specific litigation loans are all available. In the right case, we will also consider what is known as Sears Tooth Agreement whereby you agree to pay the legal fees with interest from your settlement. We judge this on a case-by-case basis and so you may not be able to take advantage of this. If none of the commercial routes are possible and evidence of this is obtained, that will inevitably strengthen any application for a Legal Services Order.

If you are thinking about or going through a divorce and you are worried about how to pay for this please get in contact with us. George Ide LLP is a leading firm of divorce solicitors working in West Sussex. You can contact Jim Richards on 01243 812428 or email Jim at james.richards@georgeide.co.uk.

Family Law
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