Legal services payment orders dealing with a difficult ex

2nd October 2018 Family Law

We’ve had some really interesting cases go through the courts in the last few weeks on the subject of legal services payment orders or LSPOs. Although that sounds quite obscure, an LSPO is, in some cases, the only way someone going through a divorce can get sufficient legal funding to be able to deal with their case and work towards a financial settlement.

They are particularly useful where the parties are financially secure but, in practice, one of the parties is heavily dependent upon the other for financial support, if for example, they rely on a credit card in their spouse’s name.

An LSPO is an order that one party to a marriage or civil partnership must provide the other with funds in order to pay their legal fees, whether as a lump sum or a monthly amount. In order to make this application, the applicant has to put together a detailed estimate of how much they are likely to need to fund the case and explain why other sources of funding, such as a litigation loan or legal aid, are not available.

LSPO applications are often made at the same time as an application for maintenance pending suit, which is a form of maintenance put in place before the final financial settlement to “keep the ship afloat„ in the interim. The applicant puts together a statement explaining their basic needs and what existing sources of finance (work, savings, loans) they have available.

In De Gafforj (Appeal: Hadkinson Order) [2018] EWCA Civ 2070, the Court of Appeal made a very unusual type of order known as a Hadkinson order. In cases of serious non-compliance with a court order, the court can order that the person in breach of their obligation is not allowed to put forward an aspect or the entirety of their case until they have put their house in order.

Here, the husband a millionaire wine producer had been ordered to pay his wife money to fund her legal fees and maintenance pending suit. Significant arrears had built up and none of the LSPO had been complied with. At the same time, the husband was disputing that the English courts had jurisdiction to deal with the divorce at all. He had permission to take his case to the Court of Appeal because it raised a genuine question on the interpretation of European law. However, the court said that his appeal would be dismissed without further consideration, unless he paid £140,000, being the LSPO element of the payments to the wife plus the costs of making the application. The court found that in this case, which was admittedly extreme the husband’s failure to pay towards the wife’s legal fees was preventing her from fighting her case and so he would be effectively silenced in court until he paid up. He has until next Monday to pay so let’s see what happens there.

In another recent case, LKH v TQA AL Z (Interim maintenance and pound for pound costs funding) [2018] EWHC 2436 the court made a “pound for pound„ order. The wife was applying for financial provision in this country after a divorce overseas and had been awarded interim maintenance, including provision for legal fees. The husband had gone into serious arrears but had nevertheless spent tens of thousands on his own solicitors. In response, the court said that for every £1 he pays to his solicitors, he must give the wife £1 to pay to hers. It is a simple, and hopefully, effective way of enforcing compliance.

It is hard enough to get a financial order in some cases, let alone having to then take steps to enforce payment. I have dealt with many cases over the years, where I have had to be pretty inventive to find legal processes of enforcement to ensure my clients receive the payments to which they are entitled, including in cases where the assets and/or the payer have been located overseas. I am very encouraged by the court taking a tough line on parties who ignore LSPOs as these are sometimes the only way of ensuring access to justice for clients who are quite vulnerable financially.


To help you assess how we can help you, here are some of the questions clients ask about getting interim financial support.

My ex-husband is really well off but I don’t work because I have young children. He will not contribute towards my legal fees but he has hired a solicitor himself. How can I get a legal services payment order?

You need to think in the round about your financial situation pending a financial settlement. We would need to consider carefully whether you should apply for maintenance pending suit as well as a LSPO. The first priority will be to try to negotiate an appropriate contribution from your husband but if this fails, you may well be entitled to a LSPO and maintenance pending suit.

Can I get legal funding from my ex to deal with a claim under Schedule 1 of the Children Act 1989?

The rules for financial claims on behalf of children where their parents were never married are different from those that apply on divorce. However, you can still apply to the court for funding to enable you to bring a claim against the financially better off parent.

What do I do if my ex won’t pay the maintenance pending suit or LSPO?

There are a range of methods for enforcing orders like this. It all depends on the other party’s financial circumstances. If they are employed, arrears and ongoing payments can be deducted from their salary at source. If they own a property or properties, a charging order can be made against them. There are lots of options and a credible threat of enforcement proceedings alone can make all the difference.


To discuss this case or similar issues with our team please do not hesitate to contact us.

 

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Jenny Arnold is a Senior Associate Solicitor located in Manchesterin our Family department

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