It is not uncommon for one party to be financial stronger than the other couple.  

There could be many reasons for this. The main reason is usually where one spouse has given up their career or education to look after the family instead of pursuing a career.

A common question we see is ‘what if I cannot pay my legal fees’. Does this mean I cannot access your services to help me?  

The answer to this is no. You do not have to suffer from lack of legal advice or representation if you are unable to pay your legal fees. There are many funding options which may be available to you in assisting you financially. Our family lawyers consider below a funding option which is known as a Sears Tooth Agreement. We will also briefly consider other funding options which may also be available to you to ensure you receive legal advice and assistance.

A Sears Tooth agreement is an agreement which is signed between a client and their representatives. This agreement assigns the client’s settlement to the representative which enables them to cover their costs incurred in acting for the client. In this agreement an appropriate amount of the divorce settlement is provided to the legal representatives to cover their fees. A Sears Tooth Agreement allows a client to continue with their legal representation and alleviates any financial fears of being left unassisted.

If a sears tooth agreement is signed and witnessed this will be a legally binding agreement. Sears tooth agreements are upheld in the court. Once your matter settles your costs will be paid first. If this option is undertaken for legal fees, then the sears tooth agreement must be disclosed to the court and your spouse.

The major benefit of a sears tooth agreement is that this is an alternative to paying costs for your legal representation upfront. It allows you to continue receiving legal advice despite not being able to fund your divorce settlement. It provides a solution to any financial concerns.

A Sears Tooth Agreement is an alternative to borrowing large sums of money from friends and family. It also avoids the option of taking out a bank loan which would incur huge amounts of interest.  Agreeing a sears tooth agreement also avoids the time an cost of court applications for other funding alternatives.  A Sears Tooth Agreement is sometimes the best option for someone struggling to pay their legal costs.

Before agreeing to a sears tooth agreement, a careful discussion is required with your legal advisor. You will need to carefully confirm your predicted settlement amount and document evidence of this.

You will therefore need to note down the assets and finances which will be considered during your divorce settlement. Valuation will need to be placed and obtained for the assets in question. An assessment can then be made of the assets and settlement which you are likely to secure in a financial settlement.

Once you have a valuation on your likely settlement you will need to consider which of the assets are liquid and easily realisable. This figure will need to cover the potential costs associated with your settlement.

Family lawyers are unlikely to enter into a sears tooth agreement if they are unlikely to recover their costs from your settlement.

Once the costs and the terms of the sears tooth agreement has been agreed a deed of retainer and assignment needs to be drafted. An independent legal advisor will then need to witness the deed. Once the deed of retainer and assignment is signed and witnessed it will need to be submitted to the court. Once the deed is accepted by the court it becomes a legally binding contract. The signed deed will also need to be sent to your partner or their representatives.

A sears tooth agreement is not the only funding option available to a separating spouse. A separating spouse who is unable to meet their legal costs has many options available some of which are:

• Borrowing money from family and friends – The benefit of this option is that these people may not charge you interest. However, will they be able to provide you with the large sums of money needed to cover your legal costs? Sometimes borrowing money from friends and family may cause a drift in relationship if moneys cannot be returned in a timely manner.
• Bank loans or credit cards- this is often a common solution to financial issues. A partner who is unable to meet ends can often rely on bank loans and credit cards. This again can be a quick fix to financial issues when funding your divorce matter. However, the disadvantage of this funding is that it attracts interest. You may end up paying large amounts of interest to cover your loan.
• Legal services order payment – This option is whereby you make an application to the court to request your spouse to make payments for your legal fees.
• Maintenance Pending Suit – This applies where a spouse financially depends on the other spouse. An application is made to the court for the financially stronger spouse to pay for maintenance. Quite often such payments can be used to fund legal costs.
• Litigation Lenders – Specialist lenders may be able to loan the amount required for legal fees. Again this payment will be deducted from the divorce settlement. However this sort of funding attracts a strict criteria as the lender will need to be certain that you will succeed and will obtain a settlement form which payment can be made.

Sears Tooth agreement may not be accepted by all family lawyers. The reason for this is the significant risk it carries. As well as paying for your representatives costs, you will also need to pay for legal disbursements. In divorce financial matters these can range from the barrister’s fees, court application fees to fees of surveyors and forensic investigators. All this could amount to a significant legal bill.

Family Lawyers need to carefully assist the individual circumstances of the case. A sears tooth agreement is usually only entered into if your legal representatives believe your prospects of success are great. They will consider the value of the financial assets and finances at stake and predict what you are likely to receive. Based on this they will be able to consider whether what you are entitled to could be used to pay their fees.

At Kabir Family Law we currently do not offer sears tooth agreements. However, we are able to consider other alternative funding options which may be best suited to your needs.

How can I pay for legal fees with a sears tooth agreement?

A sears tooth agreement allows a spouse who is not able to afford legal advice the opportunity to ensure they don’t jeopardise the advice they receive. An agreement is reached between the spouse and their family advisor. The spouse agrees that an appropriate sum from their financial settlement will be provided to the family lawyer in respect of their legal costs. This allows an individual to progress their matter without worrying about the financial implications.