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Extensive reforms to the legal aid scheme under Legal Aid Sentencing and Punishment of Offenders Act 2012 will be introduced in April 2013. Provision is made for amendment to Matrimonial Causes Act 1973 and Civil Partnership Act 2004 to enable the courts to make legal services orders. Though these will replace the existing costs allowances provisions under the existing maintenance pending suit provisions, costs allowances will still be available under the common law in other areas of family financial provision.
Two regimes will be created: one for the majority of applications under MCA 1973; and costs allowances for a miscellaneous set of proceedings summarised in FPR 2010, r 9.5(2) (eg Children Act 1989, Sch 1, Matrimonial and Family Proceedings Act 1984, Pt 3). The new regime places the burden on the applicant to show that she reasonably needs legal services order support for the proceedings; and a check-list for the court is provided for it to assess this need. A serious question arises as to whether the new provisions are discriminatory and whether it will greatly assist the majority of less well-off wife applicants for orders.
The full version of this article appears in the March 2013 issue of Family Law.
David Burrows is author of Practice of Family Law: Evidence and Procedure (Jordans, 2012).
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