Spotlight
Family Law Awards 2020
Shortlist announced - time to place your vote!
Court of Protection Practice 2020
'Court of Protection Practice goes from strength to strength, having...
Jackson's Matrimonial Finance Tenth Edition
Jackson's Matrimonial Finance is an authoritative specialist text...
Spotlight
Latest articles
Resolution issues Brexit notes for family lawyers ahead of IP completion day
Family lawyer organisation, Resolution, has issued two joint notes to assist family lawyers in England and Wales ahead of the end of the Brexit transition/implementation period at 11 pm on 31 December...
Online filing is real-time on New Year's Eve: practice direction change to accommodate EU withdrawal arrangements
I have heard that there will be an amendment to the relevant practice directions to provide that online applications received on New Year’s Eve after 4:30 PM and before 11:00 PM will count as...
Northamptonshire Healthcare NHS Foundation Trust v AB
The issue in this case concerned AB’s capacity to make specific decisions about treatment relating to her anorexia nervosa. She was 28 years old and had suffered with anorexia since the age of...
EU laws continue until at least 2038 and beyond
The UK left the EU on 31 January 2020.  But in matters of law it fully leaves on 31 December 2020.  But EU laws will continue to apply, and be applied, in the English family courts from 1...
Remote hearings in family proceedings – how is justice perceived?
The motion for the recent Kingsley Napley debate:  “This House believes remote hearings are not remotely fair” was carried with a fairly balanced 56% in favour and 44% against....
View all articles
Authors

Evidence, Practice and Procedure: Legal services orders (per LASPOA 2012)

Sep 29, 2018, 21:04 PM
Slug : DavidBurrows-120413-951
Meta Title :
Meta Keywords :
Canonical URL :
Trending Article : No
Prioritise In Trending Articles : No
Date : Apr 12, 2013, 11:40 AM
Article ID : 102111

David Burrows - Practice of Family Law: Evidence and Procedure

David BurrowsWith effect from 1 April 2013, Legal Aid and Sentencing of Offenders Act 2012 s 49(2) introduced a new Matrimonial Causes Act 1973 s 22ZA, whilst s 49(1) symbolically (for reasons explained further below) made unlawful orders for maintenance pending suit orders (MCA s 22) to make any provision for legal services (formerly often known as costs allowances). MCA 1973 s 22ZB sets out the factors the court takes into account in dealing with a legal services order. Parallel provisions apply under Civil Partnership Act 2004 Sch 5. These provisions only apply to certain forms of proceedings (financial remedy proceedings and divorce/dissolution) under MCA 1973 and CPA 2004: for all other sets of family proceedings (and perhaps others: eg Inheritance (Provision for Family and Dependants) Act 1975) costs allowances survive; and if the common law works better than statute (subject to arguments akin to Wicks v Wicks [1998] 1 FLR 470, CA), costs allowances may yet be permitted in MCA 1973 proceedings.

Three possible pre-conceptions need to be cleared away immediately: LSOs are not costs allowances, since stringent statutory principles apply to their being made (where costs allowances give greater range to judicial discretion). Second, they are not lump sum or periodical payments orders (eg under MCA 1973 s 23, hence the abolition also of maintenance pending suit costs allowances) by another name: they are a new breed of order (see s 22ZA(6) (below)). And thirdly, they are only related to legal aid in that they derive from LASPO 2012: they and their applicable principles refer to spouses of any net worth, poor and rich alike; though to obtain an order in a higher net worth case will always be easier than where there is only very limited spousal wealth.

The forms of the new orders are defined by s 22ZA(6) as follows:

(6)An order under this section may-

(a)provide for the payment of all or part of the amount by instalments of specified amounts, and

(b)require the instalments to be secured to the satisfaction of the court.

‘The amount' implies a lump sum, which can be paid outright (presumably, though the s-s does not exactly say this), part as to a single sum and then further instalments, or all by instalments. By immediate order the instalments (but not the original ‘amount' which is inconvenient) can be secured (always apply for this; and if the court has ordered and original amount, though s 22ZA(6) does not say so, get that secured as well (in cases of the slightest doubt) on principles akin to Charging Orders Act 1979 (as recently amended)). Practitioners must bear in mind that there is little in s 22ZA which seems to be designed to make the lives of applicants (mostly wives) and their lawyers any easier, so such things as opportunities immediately to charge property should be taken. Only money can be provided, not property adjusted or ordered to be sold to release cash.

The adviser must follow the two sections through to define what should be in a statement in support of any application (see entry on Family Law Linked In Group for suggested headings to a statement). This will represent the applicant's pleaded case. Application is by the Family Procedure Rules 2010 part 18 procedure; and must be accompanied by a draft order (r 18.7(1)) which - if properly drawn and supported by appropriate evidence - might just persuade a district judge to grant an order on the papers (r 18.9(1)(a)).

David Burrows is author of Practice of Family Law: Evidence and Procedure (Jordans, 2012).

The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.

Categories :
  • Articles
Tags :
Authors
Provider :
Product Bucket :
Recommend These Products
Related Articles
Load more comments
Comment by from