The essential basis of the claim is the reciprocal duty of support between spouses, which includes the cost of legal proceedings.
When assessing a spouse’s reasonable litigation needs, a court will have regard to what is involved in the case, the scale on which the parties are litigating, or intend to litigate, and the parties’ respective means. The legal rules relating to the reciprocal duty of support between spouses are gender neutral, so that an indigent husband may claim support from an affluent wife. But the reality must be acknowledged that, given traditional child-care roles and the wealth disparity between men and women, it has normally been women who have had to approach the courts for a contribution towards costs in divorce litigation.
The right to dignity is impacted when a spouse is robbed of the necessary means to litigate.
The main duty of support is owed between spouses, and a wife who is lacking means should be entitled to look to the husband, if he has sufficient means, to fund her reasonable litigation costs. (The same of course applies if the husband is indigent and the wife affluent). And where an impecunious spouse has already incurred debts in order to litigate, whether to family or to an attorney, a court should protect the dignity of that spouse by ordering a contribution to costs sufficient to repay those debts (at least to the extent that the court considers the expenditure reasonable).
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Author – Jessica Gooding