JK against LAK (Court of Session)

Factual and Procedural Background

This was a divorce action involving disputed financial provision. The court heard the Pursuer’s opposed motion for interim aliment of £16,000 per month and ordered the Defender to pay £12,750 per month, £8,000 towards removal costs, and necessary dental-treatment costs on production of supporting documents. The Defender was also to pay £2,000 per month in child maintenance and continue paying the younger child’s school fees. [1][2]

The parties married in July 2003 and separated on dates disputed in their pleadings. They have two children, one under 16. The younger child attends a fee-paying school, and the older child is in tertiary education. [3]

Following separation, the parties and their younger child continued living in the matrimonial home. The motion proceeded on the basis that the Pursuer and younger child would move into rented accommodation. [4]

The Defender had offered interim spousal aliment of £6,000 per month, child maintenance, school fees, removal costs, and dental-treatment costs. The principal dispute concerned whether the Pursuer’s legal fees should be included in the alimentary award. [5][6]

Legal Issues Presented

1. Whether the Pursuer’s prospective legal fees could be treated as part of her alimentary needs under sections 4 and 6 of the Family Law (Scotland) Act 1985. [7][8][9]
2. Whether the Pursuer’s circumstances were sufficiently exceptional to justify including £5,000 per month for future legal fees in the interim aliment award. [10][11]
3. What implications such an award might have for later expenses proceedings and the absence of a Scottish Legal Services Payment Order mechanism. [12][13]

Arguments of the Parties

Pursuer’s Arguments

• The Pursuer had no realisable assets, income, or current earning capacity, and could realise capital only through the divorce financial-provision process. [14]
• She was unable to obtain legal-aid or litigation funding, her deferred-fee arrangement had expired, and her access to justice had consequently been impaired. [14]
• The Defender had sufficient resources, including resources reflected in retained company funds, director’s loan arrangements, and transfers between companies, to pay more than the income he chose to declare. [15]
• Legal fees should be included as an alimentary need in this exceptional case, and the Pursuer sought £5,000 per month for prospective fees until conclusion of a preliminary proof. [10][9]

Defender’s Arguments

• The Defender accepted liability for interim aliment but proposed an amount that excluded legal fees. [16]
• Legal expenses were generally understood not to form part of an aliment claim, relying on section 22 of the Family Law (Scotland) Act 1985. [16]
• Although inclusion of legal fees was not said to be incompetent, it was argued to be unreasonable and unjustified because the Pursuer had not sufficiently evidenced the need for them or attempts to obtain funding. [16]
• The award could create uncertainty regarding later expenses, possible double recovery, and the risk of introducing a Legal Services Payment Order by the back door. [12]

Table of Precedents Cited

Court's Reasoning and Analysis

Sections 4 and 6 of the Family Law (Scotland) Act 1985 require consideration of the parties’ needs, resources, earning capacities, and the general circumstances of the case, and permit an interim aliment award pending disposal of the action. [7][19]

Section 22 provides that expenses incurred in pursuing or defending specified family proceedings are not to be regarded as necessaries for which the other spouse is liable. The court held that this did not mean that legal expenses could never be alimentary; rather, it removed the former basis for direct recovery of legal-service expenses from the other spouse. [20][21][9][18]

The court considered the approach in Scott v Scott, where legal-fee payments were not discounted when assessing the pursuer’s financial dependence and alimentary needs. [17][18]

The court found the present circumstances exceptional. The Pursuer had no income, no foreseeable earning capacity, no realisable assets, no ability to realise matrimonial assets at that stage, no available deferred funding, no access to legal aid or litigation funding, and had already used limited resources on legal fees. The Defender had also refused to make a payment of capital to account. [22][11]

The court therefore treated the legal fees as part of the Pursuer’s alimentary need. It noted that any later court dealing with expenses could consider the implications of the interim award when exercising its discretion. [11][13]

The court expressly stated that, given the exceptional circumstances, the order was not intended to develop existing practice or replicate an English Legal Services Payment Order. [13]

Holding and Implications

The court included the Pursuer’s prospective legal fees within the exceptional assessment of her interim alimentary needs. The court ordered interim payments and related financial assistance as stated above, including £12,750 per month in spousal aliment and £5,000 per month sought for prospective legal fees. [1][2][10][11]

The direct effect was to provide the Pursuer with interim financial support while the divorce proceedings continued. Future expenses proceedings could take the order into account. The court stated that the decision was confined to the exceptional circumstances and was not intended to develop general practice or create an equivalent to a Legal Services Payment Order. [11][13]