If you are separating and do not control the family finances, it can feel as though your former partner has an immediate advantage — particularly if you are worried about how you will pay for legal advice. In many cases, however, a lack of direct access to income, savings or liquid funds does not mean that you are unable to obtain proper representation or pursue a fair financial settlement. There may be a number of funding options available, including agreement with the financially stronger party, family or commercial borrowing, specialist litigation funding or, in appropriate cases, an application to the court. The right option will depend on the facts, so it is important to take early advice before assuming that legal representation is unaffordable.

Beth Davies, Associate in JMW’s Family team, answers some of the most common questions about funding legal fees during divorce or financial remedy proceedings, including the options available where one person does not have direct access to income, savings or family assets.

1.     What are my options for funding my legal fees if I cannot pay them from my own income or savings?

There is no single funding route that will be right for every case. The best option will depend on the assets available, who has access to them, whether funds are liquid, how urgent the advice is and whether the other party is willing to cooperate. The most common options include:

An agreement with your former partner. In some cases, the quickest and most cost-effective option is for the spouse with greater access to funds to make money available for legal fees. This can avoid the need for a contested court application, but the agreement should be recorded clearly in writing, including the amount to be paid, when it will be paid, how payment will be made and whether any repayment is expected.

Help from family or friends. A family member or friend may be willing to assist, either by way of a gift or a loan. If the money is a loan, it should be properly documented so there is no later dispute about whether it must be repaid, on what terms and from what source.

Commercial borrowing. Some people use ordinary borrowing, such as personal loans or credit cards, to meet legal fees in the short term. This will not be appropriate for everyone and the cost of borrowing, affordability and repayment risk should be considered carefully before relying on this option.

Specialist litigation funding. There are lenders who provide facilities specifically to fund legal costs during family law proceedings, usually with repayment at the end of the case. This can be useful where there are assets on paper but limited access to cash during the proceedings. Interest rates and fees can be high, so it is important to compare this with any lower-cost alternatives.

2.     Can my former partner agree to pay my legal fees without us having to involve the court?

Yes. This can be a sensible option where one party has access to funds and both accept that each person needs legal advice. The key point is that the arrangement should be properly recorded, rather than left as an informal understanding. It will not be suitable in every case, particularly where there is limited trust, urgency or disagreement about repayment, so early advice is important before relying on this route.

3.       What is a Legal Services Payment Order, and when might the court make one?

A Legal Services Payment Order, often called an LSPO, is a court order requiring one party to contribute towards the other party’s legal fees within financial remedy proceedings. It is designed for cases where one person cannot reasonably fund advice and has no realistic alternative source of funding, while the other has the resources to assist.

The court will not make an LSPO automatically. A separate application is needed, supported by clear evidence about the applicant’s resources, attempts to obtain other funding and the other party’s ability to pay. If this may be relevant, advice should be taken early so the application is prepared properly and timed appropriately.

4.     What is a litigation loan, and what should I consider before taking one out?

A litigation loan is a specialist facility used to fund legal costs during proceedings, usually with repayment from the final settlement or at the end of the case. It may be suitable where there are assets available overall but limited cash flow during the case. Before taking one out, it is important to understand the interest, fees, repayment trigger and whether a lower-cost option is realistically available.

If you are worried about how you will fund legal advice, it is important not to assume that you are without options. Taking early specialist advice can help identify the most suitable funding route, avoid unnecessary delay and ensure that decisions about funding support the wider strategy for your case.