Provision for legal costs
Maintenance Pending Suit (MPS) means that one spouse can be ordered by the Court to pay the other spouse sums of money to support them (including their legal costs) while the case is underway, before any settlement is reached. The amount of money involved is whatever the Court thinks reasonable.
Payments can be backdated to the date that a petition for divorce, nullity or judicial separation was presented.
Applications for MPS are generally listed to he heard in one hour, in which the Court must take a broad view of the means and income available and come to a decision. The Court will look very carefully at the financial disclosure of the spouse being asked to pay and the strength of the points raised by the spouse asking to be paid.
During the hearing, the Judge can either choose to hear from the legal representatives alone, or they may elect to receive submissions from the parties themselves.
Access to public funding is becoming harder. The qualification criteria have strengthened and the number of firms willing to offer publicly funded services has diminished. This means that there is a growing number of people who are “just” missing out so far as government funding is concerned, but who simply cannot pay for their legal advice prior to any settlement. This is the group of clients who need this type of help.
Until 2001, it was unclear whether Courts had the power to order a party to fund the legal costs of the other party and in which circumstances this would be ordered.
A v A (Maintenance Pending Suit: Payment of Legal Fees) [2001] allowed a provision for legal costs to be made within an application for MPS.
The criteria to achieve such an order were established as follows:
The applicant has to show that he/she has no assets, can not secure a loan and cannot enter into a Sears’ Tooth agreement with his/her solicitors in order to pay for their legal fees.
This was further qualified in the case, Currey v Currey [2006]:
The applicant needs to satisfy the court that it would not be reasonable to expect them to utilise their assets, if any, to fund legal fees and that they “cannot reasonably procure legal advice and representation by any other means”. They also need to demonstrate that there is no public funding available that would provide them with legal advice and representation at a level of expertise appropriate to the proceedings.
The court will also take into account the subject matter of the proceedings and the reasonableness of the applicant’s stance in the proceedings in making their decision.
The provision for legal costs will normally only go up to the end of the Financial Dispute Resolution hearing (FDR). The applicant will have to apply for a further allowance after the FDR. The idea is that this further application should act as an inducement for a settlement to be reached at the FDR itself or shortly afterwards.
WHAT YOU NEED TO DO
We will assess your situation at the first meeting with you and let you know where you stand.
All you need to do is contact us on 0121 633 3233 and make an appointment to see us, or drop in any Monday evening at our office at 6 the Wharf between 5.30pm and 7.30pm.
Alma Ahijado
Family Solicitor
March 2010
