Legal Aid, Sentencing and Punishment of Offenders Act 2012

50 Divorce etc proceedings: matters to be considered by court making legal services order

After section 22ZA of the Matrimonial Causes Act 1973 insert—

“22ZB Matters to which court is to have regard in deciding how to exercise power under section 22ZA

(1) When considering whether to make or vary an order under section 22ZA, the court must have regard to—

(a) 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,

(b) 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,

(c) the subject matter of the proceedings, including the matters in issue in them,

(d) whether the paying party is legally represented in the proceedings,

(e) any steps taken by the applicant to avoid all or part of the proceedings, whether by proposing or considering mediation or otherwise,

(f) the applicant’s conduct in relation to the proceedings,

(g) 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

(h) the effect of the order or variation on the paying party.

(2) In subsection (1)(a) “earning capacity”, in relation to the applicant or the paying party, includes any increase in earning capacity which, in the opinion of the court, it would be reasonable to expect the applicant or the paying party to take steps to acquire.

(3) For the purposes of subsection (1)(h), the court must have regard, in particular, to whether the making or variation of the 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.

(4) The Lord Chancellor may by order amend this section by adding to, omitting or varying the matters mentioned in subsections (1) to (3).

(5) An order under subsection (4) must be made by statutory instrument.

(6) A statutory instrument containing an order under subsection (4) may not be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.

(7) In this section “legal services” has the same meaning as in section 22ZA.”