There are some things that exist in family law that are so rarely encountered, they enjoy almost mythical status. Family lawyers have heard tell of these legal unicorns, but very few of us have ever seen them. They aren’t impossible, just very rare. Some of these rare because they are dying out. They may also be so rare that clients may have unrealistic expectations about their chances of getting one.
1. Long-term spousal periodical payments orders in favour of wives
Long-term spousal maintenance orders payable to wives (i.e. until the wife dies, remarries or cohabits) used to be quite common, but they are very rare nowadays. When they are ordered, it tends to be designed to help a wife transition towards financial independence and usually only lasts for a limited period. Precisely how long depends upon the circumstance of the case. Many wives will be prepared to accept a larger share of the assets in return for not receiving spousal maintenance (although if they have children living with them, they should still receive child maintenance).
The court prefers full clean breaks to be ordered wherever possible and will only order long-term maintenance where a lack of ongoing financial support would cause the recipient “undue” hardship. Some hardship is considered acceptable; not many people can divorce without having to make economies as it is difficult to stretch one household’s income over two households, but the hardship must not be undue.
2. Spousal periodical payments orders in favour of husbands
The court doesn’t just have the power to make orders that a husband pays spousal maintenance to his wife, it can also order a wife to pay it to her husband. However, this is vanishingly rare. I have specialised in family law since 1996 and I cannot recall ever seeing one.
The most obvious explanation for this is that, even now, husbands generally earn more than their wives and such an order would not be appropriate, but I also suspect that many men would be reluctant to feel financially dependent upon their ex-wives and would prefer to have more of the matrimonial capital in return for a clean break. Another reason may be the astonishing reluctance many wives who are financially stronger than their husbands to accept that their husbands should receive even a fair share of the assets, let alone spousal maintenance. I say astonishing, because if a husband was to argue that his financially weaker wife should receive less of the assets, it would be considered ridiculously unrealistic and old-fashioned.
3. Orders for maintenance pending suit
Maintenance pending suit (MPS) is an order made by the court for one spousal to make interim periodical payments during the divorce proceedings (which differs from an interim periodical payments order which is ordered to be paid after the couple divorce until such time as the court makes a final financial order; to all intents and purposes they are the same thing.)
Calling this form of interim maintenance “maintenance pending suit” may seem like something of a mouthful, but its positively snappy compared to the equivalent order in civil partnership dissolution cases “maintenance pending outcome of proceedings”.
MPS applications are very rare. Such applications are rarely issued, simply because the cost of frequently more than the likely reward. The court is not particularly generous. Tactically speaking, I generally don’t think it’s a good idea for an applicant to be legally represented on an MPS application, as if you can afford a lawyer to do it for you, you look like you have money to spare.
Nevertheless, it is also possible to pair an application for MPS with an application for a Legal Services Order. The trouble is that they are quite rare too.,
4. Legal Services Orders
In most family cases, there is a presumption that both sides will pay their own legal costs. The court will usually only order one side to pay costs if he or she has engaged in litigation misconduct; i.e. failing to file evidence, not complying with court orders, not turning up to court, hiding assets etc.
However, the court does have the power to make a Legal Services Order that one party shall pay a costs allowance to the other party so that he or she can afford their legal fees. It’s is a type of maintenance that is specifically to be used to meet legal expenses.
Such orders have been available for a long time (since the court’s decision in the case of A v A in 2001), but were placed on a statutory footing as Legal Services Orders in 2013. They were designed to plug the gap created by the withdrawal of family legal aid in most cases. The trouble is that many husbands (it’s invariably husbands who face applications for LSOs) simply don’t have sufficient income or assets to afford them, especially if they are already paying child maintenance, spousal maintenance and a mortgage on a house they no longer occupy, as well as trying to meet their own needs.
They are not at all easy to get. A wife who applies for an LSO will need to satisfy the court that not only can the husband afford it, but that she is not able to borrow money to pay her fees. I would ask probing questions of such an applicant as to why they had not explored the possibility of a litigation loan from a specialist lender. A refusal to use or consider mediation is also relevant. An LSO must also not cause undue hardship to the husband, nor must it prevent him from affording his own legal fees.
I receive occasional threats from other solicitors that their clients will apply for an LSO, but these applications are only very rarely issued. They may be common in big money cases, but are very rare indeed in the bulk of family litigation where the parties’ means are more modest.
5. Successfully defended behaviour divorces
Very few divorces are defended in this day and age. The chances of successfully defending a divorce are extremely low and the costs consequences of losing are vast. Out of the tiny number of defended divorces every year, only a handful reach trial and there has been only one successfully defended behaviour divorce in recent memory, the case of Owens v Owens, where the manifest unfairness of the decision galvanised the government into introducing no-fault divorce legislation. This has sadly failed to pass through the House of Commons, not due to parliamentary opposition, but due to the prorogation of parliament. It is hoped that the bill will be reintroduced in the new parliament, and when it does, defended divorces will not only be mythical, they will be extinct.
I have blogged extensively about no-fault divorce here:
Victory at last for divorce reformers
Should I wait to get a divorce?
The new divorce law and why it might not be a good idea to wait
6. Costs orders in children cases
Orders for costs in family cases are pretty unusual nowadays. They are commonplace in fault-based divorces, but will vanish once no-fault divorce is possible, due to their essentially punitive nature. They are quite rare in divorce financial remedy applications; most cases settle without going to trial and usually do so on the basis that both sides pay their own legal fees. The court can make costs orders in favour of the winning party at a trial even if there has not been litigation misconduct, but even then, there is no guarantee.
Clients in applications to the court about their children for Child Arrangements Orders etc. often ask me if the party on the other side (who they often regard as thoroughly unreasonable) might be ordered to pay their costs at the end of the case. After all, why should they have to incur all this expense because the other side has acted in such a way to make litigation necessary?
My advice is always that there is very little likelihood of costs orders in these types of cases. An award of costs against a parent is exceptionally rare, as the court will not want to make it appear that the parent is being punished, and thereby risk reducing the possibility of future co-operation between the parents which could impact adversely on the child’s welfare. Parents should not be deterred from starting or opposing court proceedings in their children’s best interest because they fear that a costs order may be made against them.
The court may order costs in exceptional circumstances, usually where the paying party’s conduct in the proceedings has been unreasonable in their conduct. My advice to all clients in all cases is assume that you will have to pay your own legal fees in full.
7. Children Act 1989 Schedule 1 applications for financial provision
Schedule 1 claims can be made by parents and step-parents for financial provision for children. Such application tends to only be made in cases involving unmarried couples, although there is no specific reason why they could not be used by a divorced couple. (Whether or not a second attempt at a financial claim after a divorce would be successful is doubtful, but would depend on the circumstances of the case.)
Given how many couples cohabit, have children and then split, with first going through a marriage, you would expect that these applications would be commonplace, but they are in fact surprisingly rare. When they are seen, it is often in tandem with a claim in the county court for an order for sale of a property. Free-standing applications are quite rare.
8. Family arbitration
Most family practitioners nowadays should be familiar with alternatives to court such as mediation or collaborative law. Relatively few seem to be familiar with the option of family arbitration.
Family arbitration involves instructing a specially trained arbitrator to make a decision about finances or arrangements for children. He or she will make the decision by applying the law in the same way as a judge, but using a private process that is both quicker, involves fewer steps and as a result is cheaper. At a time when courts are under resourced and clogged up with cases, arbitration is often a much better way to resolve disputes than court proceedings.
However, arbitration is relatively rarely used. There have been relatively few family arbitrations, something which is surprising given that it has been available for about 8 or so years. The main reason for this seems to be that solicitors have no experience of it and are resistant to trying something new and unfamiliar.
Many of the above legal unicorns are things what are likely to decline and continue to fade away, but arbitration is a mythical creature which ought to become common place.
I have blogged about arbitration here:
Why is family arbitration not used more?
Conclusion
Some of these legal unicorns are so mythical as to be useless and a good solicitor will need to know ow when to steer a client away from some options. For example, I have never advised a client to defend a divorce petition and I struggle to conceive of circumstances in which I would do so. Good solicitors also need to know when to employ some of these rarer options. Children Act Schedule 1 claims and Legal Services Orders may be justified much more than is often believed. If you use a solicitor, you are not just paying for legal advice and representation, you are also using a trained and experienced professional who will help you discern myth from reality.
22 September 2019
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