Too often one of the reasons a wife will avoid seeking help from a professional, i.e. a solicitor, when her marriage breaks down, will be amongst other things, her concern as to how she is going to be able to pay for the advice and assistance she will benefit from.
In many instances she will have access to funds either in her own name or in the joint names of her and her husband. She is if course entitled to use funds in joint names (i.e. joint bank accounts and investments) to pay for legal advice. But what of the situation where she does not have or does not have access to funds/ sufficient funds to pay for a solicitor? What does she do then?
What often happens in these situations is that whilst the wife will put off seeking legal help/ advice, her husband will not be so constrained and will himself engage solicitors to assist him – with the ensuing consequence that the wife may well start the divorce proceedings second best.
There is help available. The Matrimonial Causes Act 1973 enables a wife who is unable to financially meet the costs of a solicitor to apply to the court for it to make an order that the husband in effect pay for the wife’s legal costs.
The statute provides however that before the court will order a husband to pay for the wife’s legal costs it must be satisfied that she could not reasonably obtain a loan to pay for her legal costs. There are various legal costs providers who will, subject to fulfilling various criteria, provide funding for legal costs upon separation/ divorce. Whilst such borrowing enables the wife to then be properly advised and represented in divorce proceedings, such borrowing entails interest payments. In a recent case, SJ v RA  EWHC 4045 (Fam) the Court said that it was unfair that the wife had to borrow money from a legal loan provider to fund her legal fees, incurring a high level of interest when the husband himself did not have to. The court therefore made the wife’s loan the responsibility of both parties.
Thank you to Christopher McCourt of 1 Kings Bench Walk, London for guest blogging.