As part of a maintenance pending suit order, if a party can satisfy certain criteria, the court can make an order that includes provision for the funding of legal costs for the divorce proceedings. The court has jurisdiction to make orders for the provision for legal costs funding by way of regular monthly payments as opposed to a lump sum. It is usual that the order will only be for a limited period of time, such as until the next milestone date in the proceedings like the FDR hearing.
The purpose of ensuring that the applicant has access to funds for litigation costs to level the playing field and to avoid the applicant being denied access to justice.
The criteria that an applicant needs to meet in order to be successful in a litigation funding application, is as follows:
- That the applicant has no assets, or no assets that can be reasonably deployed;
- That the applicant cannot provide security for borrowing;
- That the applicant cannot reasonably obtain legal services by providing a charge on the outcome of the litigation;
- That the applicant cannot secure publicly funded legal aid at the level of expertise suitable for the proceedings.
The applicant must provide a detailed breakdown of anticipated litigation costs, in support of his or her application for legal costs provision.