Section 45 of the Bill inserts a new section 22ZA into the Matrimonial Causes Act 1973. S.22ZA(1) provides that:
In proceedings for divorce, nullity of marriage or judicial separation, the court may make an order or orders requiring one party to the marriage to pay to the other (“the applicant”) an amount for the purpose of enabling the applicant to obtain legal services for the purposes of the proceedings.
Sub-paragraph (2) states that the court may also make such an order or orders in proceedings for financial relief (i.e., to use the old terminology, ancillary relief) in connection with proceedings for divorce, nullity of marriage or judicial separation.
There are limitations upon when such an order can be made, and these are contained in sub-paragraphs (3) and (4). The court will only be able to make an order if it is satisfied of three things:
1. That, without the amount, the applicant would not reasonably be able to obtain appropriate legal services for the purposes of the proceedings or any part of the proceedings;
2. That the applicant is not reasonably able to secure a loan to pay for the services; and
3. That the applicant is unlikely to be able to obtain the services by granting a charge over any assets recovered in the proceedings.
An order can cover legal services of a specified description, including legal services provided in a specified period or for the purposes of a specified part of the proceedings (sub-section 5).
The order can be paid in instalments (sub-section 6(a)), can be deferred (sub-section 7) and can be varied (sub-section 8).
For the purposes of the assessment of costs in the proceedings, the applicant’s costs are to be treated as reduced by any amount paid to them pursuant to an order under this section (sub-paragraph 9).
'Legal services' is defined in sub-section 10.
A new section 22ZB (inserted by s.46 of the Bill) sets out the matters to which court is to have regard in deciding how to exercise its power under section 22ZA. These include the means and needs of both parties, the subject matter of the proceedings (including the matters in issue - presumably, an order would not be made if the case was straightforward), whether the applicant has considered mediation, the applicant's conduct in relation to the proceedings, and the effect of the order on the paying party (s.22ZB(1)).
By section 47 of the Bill s.24A(1) of the MCA is amended to include s.22ZA orders as orders that can 'trigger' an order for the sale of property.
Finally, note that section 45 amends s.22 MCA by providing that orders for maintenance pending suit "may not require a party to a marriage to pay to the other party any amount in respect of legal services for the purposes of the proceedings". In other words, such matters are now to be dealt with under s.22ZA.
Sections 48 to 50 make similar provision in respect of civil partnership proceedings.