1. Introduction
In JK against LAK [2026] CSOH 83 (Outer House, Court of Session),
Lady Tait determined an opposed motion for interim aliment within a divorce action where
financial provision was in dispute. The central controversy was not whether the defender could meet an award,
but whether the court should treat the pursuer’s prospective legal fees as part of her
alimentary needs, notwithstanding section 22 of the Family Law (Scotland) Act 1985
(which states that divorce/aliment litigation expenses “shall not be regarded as necessaries” for which the other spouse is liable).
The parties had two children (one under 16). The parties continued to live in the matrimonial home after separation.
The motion proceeded on the basis that the pursuer and the younger child would move to rented accommodation, with the defender continuing to pay
child maintenance and the child’s school fees.
2. Summary of the Judgment
Lady Tait ordered the defender to pay:
- £12,750 per month as interim aliment;
- £8,000 removal costs within 28 days; and
- invoiced sums for necessary dental treatment within 28 days of vouching.
It was also recorded that the defender would pay £2,000 per month as child maintenance for the younger child
and would continue to pay school fees.
On the key legal point, the court held that section 22 does not preclude the court, in an exceptional case, from considering legal fees as part of alimentary need
when applying the section 4 test. The court stressed this was not an attempt to introduce an English-style
Legal Services Payment Order (LSPO) “by the back door”, nor to develop a general practice.
3. Analysis
3.1 Statutory framework applied
The decision is anchored in three provisions of the 1985 Act:
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Section 4 (amount of aliment): the court must have regard to needs and resources,
earning capacities, and all the circumstances of the case.
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Section 6 (interim aliment): confers a broad discretion to award the sum claimed or a lesser sum pending final disposal.
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Section 22 (expenses of action): litigation expenses in divorce/aliment actions are not “necessaries”
for which the other spouse is liable (abolishing a historical route by which solicitors could recover fees from the alimenting spouse).
The pursuer’s argument—accepted in substance—was that section 22 addresses “necessaries” liability, but does not exhaust what may count as a
“need” under section 4 in an interim aliment assessment.
3.2 Precedents and materials cited
Scott v Scott [2021] SC ABE 40
The court treated Scott v Scott [2021] SC ABE 40 as persuasive support for the proposition that
section 22 does not require the court to disregard the reality that a spouse is paying (or needs to pay) litigation costs
when assessing interim aliment. The passage quoted (at [60]) explains section 22 as abolishing the “old rule” about necessaries-based recovery,
while leaving open the relevance of legal fee outgoings to the spouse’s actual financial position and dependence on support.
Lady Tait’s approach aligns with that reasoning: section 22 removes one doctrinal mechanism (third-party recovery as “necessaries”), but does not
create a substantive exclusion from the section 4 needs assessment.
Scottish Law Commission Report (Scot Law Com No 67)
The pursuer relied on Scot Law Com No 67 (paras 2.146–2.150) concerning the historic “necessaries” doctrine and the recommendation
that expenses of consistorial litigation should no longer be treated as necessaries. The judgment uses this to clarify what section 22 was
designed to do (abolish the necessaries route), and—importantly—what it was not necessarily designed to do (mandate that courts ignore legal costs
in assessing alimentary need in an exceptional fact-pattern).
3.3 Legal reasoning
The defender’s primary submission was not incompetency, but that including legal fees would be unreasonable, might distort later expenses awards,
and could resemble an LSPO without Scottish statutory safeguards. Lady Tait accepted the general practice concern, but resolved the
motion by tightly confining the outcome to the case’s exceptional circumstances.
The “exceptional” features identified by the court were cumulative and practical:
- the pursuer had no income and, based on medical material, no foreseeable earning capacity;
- she had no realisable assets and could not realise matrimonial assets pre-decree;
- her deferred fee arrangement had expired;
- she was ineligible for legal aid and unable to obtain litigation funding;
- limited resources had been expended on legal fees already;
- she advanced a claim for a significant capital sum, yet the defender refused a payment of capital to account
(which might have provided a neutral funding mechanism without characterising the support as “legal fees”); and
- the defender had the resources to pay (the dispute was not truly about present ability).
On the defender’s concern about later expenses (costs), Lady Tait preserved flexibility: any future expenses determination could
take account of what had been ordered at the interim stage, within the court’s discretion. That is a key control mechanism: the interim order does
not predetermine expenses liability or quantification, but it does acknowledge that funding choices made during litigation can be relevant when the
court later exercises its expenses discretion.
Finally, the judgment expressly disclaims any intention (i) to “develop practice” generally, or (ii) to mimic an LSPO. The practical effect is to
frame the decision as a section 4/section 6 exercise responsive to access-to-justice constraints, rather than the creation of a new
category of standalone legal-services funding order.
3.4 Impact and significance
The decision’s likely influence is doctrinally modest but practically important:
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Clarification of section 22: section 22 is confirmed as an abolition of the “necessaries” route, not an absolute bar to treating
legal costs as relevant to “needs” under section 4 in interim aliment.
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Exceptional-case gateway: parties seeking inclusion of legal fees must expect close scrutiny and must demonstrate a funding
dead-end (no income, no assets, no legal aid, no funding, and no realistic interim capital route).
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Strategic consequence for higher-resource spouses: refusal to make a reasonable payment of capital to account may increase the
likelihood that the court treats legal fees as part of interim need—particularly where the refusal materially impairs the other party’s ability
to litigate.
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Expenses (costs) remain adjustable: the court signalled that later expenses decisions can accommodate the interim funding history,
reducing (but not eliminating) the “double counting” concern raised by the defender.
In future interim aliment motions, the case is likely to be cited where one spouse argues that, absent interim provision for legal fees, the party
cannot participate effectively in the litigation and cannot access ordinary funding routes.
5. Conclusion
JK against LAK [2026] CSOH 83 confirms that section 22 of the Family Law (Scotland) Act 1985 does not, of itself, prevent the court from
taking legal fees into account when fixing interim aliment. The judgment’s practical rule is narrow: such an approach is justified only in
exceptional circumstances where the claimant spouse lacks income, assets, earning capacity, legal aid eligibility, and realistic
alternative funding—and where refusal of interim capital contributes to an access-to-justice impasse. The court also preserved flexibility for any
later decision on expenses, reducing the risk that an interim funding solution improperly dictates the final costs outcome.