Legal Aid, Sentencing and Punishment of Offenders Act 2012

53 Dissolution etc proceedings: matters to be considered by court making legal services order E+W

After paragraph 38A of Schedule 5 to the Civil Partnership Act 2004 insert—

“38B (1) When considering whether to make or vary an order under paragraph 38A, 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 sub-paragraph (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 sub-paragraph (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 paragraph by adding to, omitting or varying the matters mentioned in sub-paragraphs (1) to (3).

(5) An order under sub-paragraph (4) must be made by statutory instrument.

(6) A statutory instrument containing an order under sub-paragraph (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 paragraph “legal services” has the same meaning as in paragraph 38A.”