As far as I am aware, the recent case of Assoun v Assoun is the first reported case to feature the new ‘Orders for payment in respect of legal services’ provision, under section 22ZA of the Matrimonial Causes Act, since it came into force in April.
This section enables the court to make 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…’. The orders were brought in by the Legal Aid, Sentencing and Punishment of Offenders Act 2012, and at least part of the rationale behind them was to make up for the Act’s virtual abolition of legal aid for family matters.
The orders may be made in proceedings for divorce, nullity of marriage or judicial separation and also (as was the case in Assoun v Assoun) as part of proceedings for financial relief (financial settlement).
Under sub-section (3), courts must be satisfied that, without the payment, the person would not reasonably be able to obtain appropriate legal services. TYhe 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 (in other words, use property as collateral to borrow).
There is a list of the issues which courts must consider when deciding whether to make this kind of financial order. These include the means and needs of both parties, the subject matter of the proceedings and whether the person applying has taken any steps to avoid the proceedings – for example by proposing mediation. They also include the effect of the order on the paying party. In the latter case, the courts must consider whether an 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.
Unfortunately, the Assoun judgment is rather short, dealing only with Mr Assoun’s application for permission to appeal against the making of a legal services order in favour of his wife, rather than a full appeal against the order. Nevertheless, there are a couple of interesting points.
Firstly, Mr Assoun complained that the judge had failed to look into his wife’s financial situation, as required by section 22ZB above. The judgment of Lord Justice Moses in the Court of Appeal effectively side-steps this question by saying that the matter will be looked into fully when the final hearing takes place (it actually began yesterday – the Court of Appeal hearing took place last month). In other words, when considering the application for an order, the court did not fully investigate the means of each party and relied instead upon the wife’s claim that she lacked funds.
Lord Justice Moses concluded his judgment with a warning: “… woe betide [the] wife if the basis upon which she obtained this substantial order turns out to be false”. Hopefully, this stern sentence will be sufficient to discourage any future applications which have no merit.
The other point of interest is that Mr Assoun represented himself in the Court of Appeal. I don’t know whether he will continue to do so at the final hearing, but, as mentioned above, section 22ZB does require the court to consider whether the making of an order will prevent the person paying from obtaining representation themselves. If Mr Assoun is ‘prosperous’ as the lower court found, then surely he could afford representation? Did the lower court get it wrong, or is Mr Assoun simply pretending to have no money? If the court did get it wrong, then that is a pretty serious matter, going against not just section 22ZB, but also the whole idea of making each party to obtain legal representation.
Again, I suppose the final hearing will reveal all.