When your ex may be ordered to help you pay your costs in family law matters

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December 16, 2013 by Todd

When this article may be helpful

In a family law matter, it is still common for there to be one main income earner and also for one person to have control over the property of the relationship.  When separation occurs, this can mean that they are in a better position to get a good lawyer to help them get the best outcome.  However, the other party (who may have stayed at home to look after the kids or who only works part-time or casually) can be put in a difficult position.  They don’t have access to a regular income necessary to pay legal fees.  Nor do they have access to savings or other property to pay for a lawyer.

Do you have any options?

If you are not the main income earner or if you don’t have the savings to pay for a lawyer, you do have other options.  In a family law property settlement, one of those options involves asking a Court to make an order that your ex pay you a sum of money to help you pay your legal costs.

What is involved in this application?

In part, it depends on where the Court decides it is drawing the power to make the order from.  It can make the order as a maintenance order, a property settlement order, or a costs order.  However, the following matters are likely to be relevant in any such application and should be addressed in your documents:

(a)    Whether you are able to fund your own legal costs.  For example, do you have savings from which you can pay your legal fees?  If not, whether you can get a lawyer to represent you and what this would mean for your case.

(b)   The financial circumstances of you and your ex.

(c)    Whether there is a particular source from which you think your ex can pay any ordered sum.

(d)   What enquiries you have made about other sources of finance, such as Legal Aid and loans from others.

(e)    The likelihood that your case will be successful.

(f)    Evidence as to your costs to date and estimated future costs.  This may include evidence that your lawyer or other witnesses do not carry costs and are not prepared to undertake further work without the assurance that their fees will be paid as and when invoices are issued.

(g)   What amount are you asking for?  How likely is it that you will incur those costs?  Is your matter likely to settle before a hearing?  If so, is it necessary to make an order at this stage for the costs of a later stage?  Or can the question of those costs be dealt with later?

What to do now

Need further information?  Don’t just see a family lawyer.  See a family law master, and let our knowledge be your edge.  Contact us now.


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