Guide to paying for your living costs and legal fees
It is not uncommon for one party in a relationship to have all the family assets in their sole name and to control the family finances. Often they will pay their spouse, who does not have any other income, an ‘allowance’ or provide them with access to a credit card or a joint bank account fed with limited funds to meet day-to-day living expenses. In the case of divorce proceedings being issued, some parties will attempt to cut off their spouse’s access to money, the effect of which is that the dependant spouse will not have funds to meet living expenses or legal fees. Most solicitors will advise clients who have a financially-dependant spouse that they have an obligation to make financial provision for them but this advice is not always immediately accepted. Where a party refuses to make sufficient financial provision for a financially-dependant spouse or the dependant spouse asks for an unreasonable sum, the matter is likely to come before the court.
Before considering court action the person seeking the money must explore all other alternatives. For some a litigation loan can be secured, particularly if they have property, or a share of property, in their own name.
Bringing the matter before a court is known as making a “maintenance pending suit” application (or MPS application for short). Maintenance pending suit applications cannot be made before the main proceedings have been issued at court and are most common in the context of divorce proceedings. They are, however, available in some other actions. The courts are able to order that one party pays the other a monthly amount to assist them with their financial needs. The court can also order in some circumstances that the paying spouse makes provision for the other spouse’s legal fees,
The court will take into account the resources available to the parties, their respective financial needs and obligations, and the standard of living enjoyed during the marriage in deciding the application.
Where a spouse asks the court to order that the other party makes provision for their legal fees the court, in addition to the above factors, will also take into account others, such as the level of legal representation available to the paying party, any steps taken by the party making the application to avoid proceedings, for example by considering mediation, the applicant party’s conduct in relation to the proceedings and the effect of any order made on the paying party. Further, the application will generally only be successful where:
- The dependant spouse does not have assets that could reasonably be used to meet the litigation costs;
- They have tried and failed to obtain a loan to fund their costs;
- Their solicitor is not prepared to enter into a deed of assignment whereby they will recover their fees at the end of the litigation; and
- Public funding which would furnish them with legal advice and representation at a level of expertise appropriate to the proceedings is not available.
If you are interested in discussing how to pay for your living costs and legal fees please see How Vardags can help with paying for your living costs and legal fees.