LASPO: Changes to the MCA

My thanks to ObiterJ of Law and Lawyers for reminding me today that the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (as it unfortunately now is) makes certain changes to the Matrimonial Causes Act 1973 and the Civil Partnership Act 2004. Just to go into a little more detail, the changes are as follows:

Section 49 of LASPO begins by specifying that an order for maintenance pending suit under s.22 MCA may not require a party to pay to the other party any amount in respect of legal services for the purposes of the proceedings, and then inserts a new s.22ZA, enabling the court to 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' ('Orders for payment in respect of legal services'). Such orders may be made in proceedings for divorce, nullity of marriage or judicial separation and also in proceedings for financial relief in connection with proceedings for divorce, nullity of marriage or judicial separation.

Under sub-section (3), the court must not make an order unless it is satisfied 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, and for the purposes of subsection (3), the court must be satisfied, in particular, that—
(a) the applicant is not reasonably able to secure a loan to pay for the services, and
(b) the applicant is unlikely to be able to obtain the services by granting a charge over any assets recovered in the proceedings (s.22ZA(4)).
An order may be made to enable the applicant to obtain legal services of a specified description, including for a specified period or for the purposes of a specified part of the proceedings (s22ZA(5)), and may provide for payment of the amount by instalments (s.22ZA(6)).

S.22ZA(9) makes the obvious provision that, 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 the applicant pursuant to an order under this section for the purposes of those proceedings.

S.22ZA(10) defines 'legal services', which include advice and assistance in the form of representation and any form of dispute resolution, including mediation.

Moving on, section 50 of LASPO inserts a new s.22ZB, which sets out the matters to which the court is to have regard in deciding how to exercise power under section 22ZA. These include the means and needs of both parties, the subject matter of the proceedings and, interestingly, whether the applicant has taken any steps to avoid the proceedings (for example by proposing mediation) and the applicant’s conduct in relation to the proceedings. They also include the effect of the order on the paying party and, for these purposes, the court must have regard, in particular, to whether the making or variation of the order is likely to—
(a) cause undue hardship to the paying party, or
(b) prevent the paying party from obtaining legal services for the purposes of the proceedings (s.22ZB(3).
Section 51 of LASPO amends s.24A(1) MCA by adding orders under s.22ZA to the types of order that can 'trigger' the making of an order for sale of property under s.24A.

Finally, ss.52, 53 and 54 of LASPO make similar provisions as above in respect of civil partnerships, by making the appropriate amendments to the Civil Partnership Act 2004.