The case is reported here.
It has long been the practice in family law in Scotland that it is simply not possible for a spouse to seek a payment of spousal maintenance (known as interim aliment) which includes a sum for legal fees.
In contrast, a route for seeking legal fees is available in the English court, known as a "Legal Services Payment Order" or LSPO. This is an order which compels one spouse to make payments to the other spouse, so that the latter can obtain legal advice and representation. There are a number of factors for the court to take into account in considering whether to make a LSPO, including: whether the claimant would be able to secure a reasonable loan to pay for legal services; whether funds could be raised against any other assets; any income or earning capacity of the claimant; and whether such an order would result in financial difficulty for the paying spouse.
Given that I am dual-qualified and involved in family law cases in both the English and Scottish courts, I have been struck by the disparity of the law in dealing with this point - whilst my clients in the English court could seek payments towards legal fees in light of the LSPO provisions, my Scottish clients could not.
Or could they? As noted, that was the standard convention in terms of Scots law. But this stems from a fundamental misunderstanding of the Scottish legislation. The oft-cited provision supporting this position is section 22 of the Family Law (Scotland) Act 1985, which states that the expenses incurred by a person in pursuing or defending a family law action "shall not be regarded as necessaries for which the other party to the marriage… is liable". To help with interpretation, we went back to the Scottish Law Commission Report which proposed the 1985 Act, available here. Paragraphs 2.146 to 2.150 make clear that this provision was intended at something quite different. The old, pre-1985 rule regarded payment of legal fees by a wife to her lawyers as "necessaries" for which a husband could be automatically liable, without any agreement. The comparison was made to the wife's lawyers "being in the same position as a grocer who has supplied an indigent wife with "necessaries" and who is entitled to recover from the husband" (SLC Report 67, para 2.146). The Scottish Law Commission's recommendation was that this provision was out-of-date and unnecessary for family law cases, given the introduction of the Legal Aid system. Interestingly, they did not recommend getting rid of the provision for legal fees for non-family law cases (so it would be theoretically possible for a husband to be automatically liable for a wife's legal fees for, say, a damages claim - although even in the 1980s the Law Commission thought that would be a "rare case").
This thinking by the Scottish Law Commission made its way into section 22 of the 1985 Act, which remains in force. But looking behind the practice and convention, it is clear both from the terms of the section and from the Scottish Law Commission report that all this means is that a husband is no longer automatically liable for a wife's legal fees. It does not exclude the possibility of a sum for future legal expenses forming part of a spouse's alimentary needs, with the court considering this in terms of the usual test for aliment, taking into account each party's income, earning capacity, needs, resources and other relevant circumstances.
This view of the legislation was approved in a previous Sheriff Court case, Scott v Scott [2021] SC ABE 40. In the present case, it was ultimately accepted by the defender's solicitors that section 22 of the 1985 Act did not preclude consideration of legal fees as part of a claim for interim aliment.
So in what type of cases could this claim be made? In the reported case, Lady Tait held as follows:
"In considering the pursuer’s legal fees as part of alimentary need, I was clear that the present case is exceptional. The pursuer has no income and no foreseeable earning capacity (consistent with medical reports before the court); she has no realisable assets; she cannot seek to realise any matrimonial assets; her deferred funding arrangement has expired; she is ineligible for legal aid and unable to secure litigation funding; she has expended any limited resources paying legal fees; she has a claim for a significant capital sum; and the defender has refused to make any payment of capital to account". [para 16]
Lady Tait was also clear that in making this order, the Scottish court "neither seeks to develop practice nor to mimic an LSPO" [para 17].
It was against this rather exceptional background that the court made its decision to take into account the wife's estimated future legal fees as part of the award of aliment.
The pathway and guidelines for future cases therefore remain to be seen. But for now, some clear thinking has overturned long-standing misapprehension about what is possible for maintenance in Scottish divorce cases.
