Family Law Hub

A Change is Gonna Come

The new Legal Aid act will introduce changes to the MCA 1973. Nicola Rowlings summarises what they will mean when in force.

  • With all due credit going to Obiter J of Law and Lawyers for highlighting that the Legal Aid, Sentencing and Punishment of Offenders Act 2012 makes changes to the Matrimonial Causes Act 1973 ("MCA 1973") and the Civil Partnership Act 2004 ("CPA 2004") by giving courts the power to make orders for costs between parties to pay for legal services. These provisions have not yet been brought into force; we'll post an update as soon as they are. In the meantime, here is a summary of the changes.

    Section 22ZA Matrimonial Causes Act 1973

    Firstly, s.49 LASPOA 2012 specifies that an order for MPS under s.22 MCA 1973 may not require a party to pay to the other party any amount in respect of legal services for the purposes of the proceedings. However, it then inserts a new s.22ZA MCA 1973 ("Orders for payment in respect of legal services") 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". These orders can be made in proceedings for divorce, nullity and judicial separation and also in any connected financial relief proceedings.

    The court cannot 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. In addition, the court must be satisfied that:

    • the applicant is not reasonably able to secure a loan to pay for the legal services; and
    • the applicant is unlikely to be able to obtain the legal services by granting a charge over any assets recovered in the proceedings (s.22ZA(4) MCA 1973).

    An order may be for specified legal services or for a specified period or for a specified part of the proceedings (s22ZA(5) MCA 1973) and can provide for payment by instalments (s.22ZA(6) MCA 1973).

    S.22ZA(9) MCA 1973 provides that, for the purposes of the assessment of costs, the applicant’s costs are to be treated as reduced by any amount paid to them s.22ZA MCA 1973 order.

    S.22ZA(10) MCA 1973 defines "legal services" as including advice and assistance as well as any form of dispute resolution.

    Section 22ZB Matrimonial Causes Act 1973

    s.50 LASPOA 2012 inserts a new s.22ZB MCA 1973 which sets out the matters to which the court must regard in deciding how to exercise its power under s.22ZA MCA 1973. These include:

    • the income, earning capacity, property and other financial resources which each of the applicant and the paying party has or is likely to have in the foreseeable future;
    • the financial needs, obligations and responsibilities which each of the applicant and the paying party has or is likely to have in the foreseeable future;
    • the subject matter of the proceedings, including the matters in issue;
    • whether the paying party is legally represented in the proceedings;
    • any steps taken by the applicant to avoid all or part of the proceedings, whether by proposing or considering mediation or otherwise;
    • the applicant’s conduct in relation to the proceedings;
    • any amount owed by the applicant to the paying party in respect of costs in the proceedings or other proceedings to which both the applicant and the paying party are or were party; and
    • the effect of the order or variation on the paying party.

    Section 24A(1) Matrimonial Causes Act 1973 

    s.51 LASPOA 2012 amends s.24A(1) MCA 1973 by adding orders under s.22ZA MCA 1973 to the types of order that can trigger the making of an order for sale of property under s.24A(1) MCA 1973.

    ss. 52 - 54 LASPOA 2012 make similar provisions in respect of partnerships under CPA 2004.

News, published: 15/05/2012

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Published: 15/05/2012

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