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The case of Rubin v Rubin and Legal Services Orders

Posted on Tuesday, 24th June 2014 by
Rubin vs Rubin

Photo Credit: Marco Bellucci via Compfight cc

What is a legal services order?

Sections 22ZA and 22ZB have been added to the Matrimonial Causes Act 1973 from 1st April 2013.  The court can make an order, requiring one party of the marriage to pay to the other an amount ‘for the purpose of enabling the applicant to obtain legal services for the purposes of the proceedings’.

Orders may be made in divorce, nullity or judicial separation proceedings.  An order may be a one-off payment, or can be made in instalments, for example on a monthly basis. An order may be varied too.

What will the court consider in reaching a decision on making an order or not?

They include the income, earning capacity and resources of the parties, their needs and obligations, the subject matter of the proceedings and even the conduct of the party.

On the face of it legal services order which is broadly similar a Maintenance Pending Suit order which most solicitors are very familiar with. In the case of A V A [2001] 1FLR 377 it was established that the court’s power to make Maintenance Pending Suit orders under Section 22 of the Matrimonial Causes Act 1973 was wide enough to enable the court to make an award for payment of the wife’s ongoing legal fees in the matrimonial case.  Maintenance pending Suit orders were easier to obtain than Legal Services Orders.

The main obstacle in obtaining a Legal Services Order is that the court must not make a Legal Services Order unless it is satisfied that, without the payment “the applicant would not reasonably be able to obtain appropriate legal services.”  In addition, the applicant is not reasonably able to secure a loan to pay for legal services; and is unlikely to be able to obtain the legal services by granting a charge over any assets recovered in the proceedings.

Given the number of litigation lenders in this sector it was anticipated that few applicants would be able to clear the first hurdle yet alone all three hence, precluding parties them from securing a legal services order.

In the recent decision of Rubin v Rubin [2014] EWHC 611 (Fam) is likely to mean a significant increase in the number of legal services orders being granted

The presiding judge, Mostyn J’s comments regarding the availability of litigation loans is very helpful on this issue he stated: ‘If a litigation loan is offered at a very high rate of interest it would be unlikely to be reasonable to expect the applicant to take it unless the respondent offered an undertaking to meet that interest, if the court later considered it just so to order’.

On the issue of the availability of loans he stated: ‘Evidence of refusals by two commercial lenders of repute will normally dispose of any issue whether a litigation loan is or is not available.’  The court would be unlikely to expect an applicant to sell or charge their home or to deplete a modest fund of savings.

The second limb of the test considers whether the applicant is able to obtain legal services by granting a charge over any assets recovered in the proceedings. This can be dealt with by a clear statement of refusal by the applicant’s solicitors to accept such a charge.

As the court cannot make an order unless it is satisfied that without the payment the applicant would not reasonably be able to obtain appropriate legal services.

Mostyn J also noted that monthly instalments were preferable to a single lump sum payment as this is what would usually happen as far as settling solicitors bills was concerned.

In summary, although applicants for legal services orders must be careful to satisfy the test contained in sections 22ZA and 22ZB, Mostyn J’s decision in Rubin should mean that significantly more legal services orders are granted in future.

 

For advice on divorce and financial settlement contact Farah Qureshi – Family law specialist at Edward Hands and Lewis Solicitors.

Emma Fuller is head of the private client team at EHL; our solicitors in Loughborough are experts in their fields and dedicated to quality client care. If you would like to find out more about our solicitors in Loughborough please contact us.

The information provided in all of our blogs are for information purposes only and do not constitute legal advice.  Please see our website terms and conditions for full details of our disclaimer.  You should speak to one of our highly trained and qualified solicitors who will be able to advise you on your own particular circumstances.

 

 

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The information provided in all of our blogs reflects only a narrative of some elements to consider on the topic. The blogs do not contain considered legal advice and should not be relied upon as advice. Please see our website terms and conditions for full details of our disclaimer. If you are interested in obtaining advice, please contact one of our lawyers who will be happy and able to advise you on your own particular circumstances.

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Emma Fuller - Wills, Probate and LPA
Emma Fuller - Wills, Probate and LPA
emma.f@ehlsolicitors.co.uk 01509 212 108
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