Family Law

With 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.