Taking partners’ financial resources into account: civil legal aid

Regulation 11 of the Civil Legal Aid (Scotland) Regulations 2002 says that: “For the purposes of section 42 of the Act, two persons living together as husband and wife or in a relationship which has the characteristics of the relationship between husband and wife except that the persons are of the same sex shall be treated as if they were spouses of each other”.

The practical effect of this is that Regulation 11 covers spouses, civil partners and those living together in relationships with the characteristics of spouses or civil partners.

In this guidance we will use the term “partner” to mean the person concerned husband or wife, civil partner, or any person that the person concerned is living with in a relationship which has the characteristics of the relationship between husband and wife or spouses or civil partners.

Regulation 11 of the Civil Legal Aid (Scotland) Regulations 2002 requires that when assessing an applicant’s financial eligibility and the amount of any contribution that the applicant can be asked to pay towards the cost of the case, if the person concerned  is married or living with a partner as if married, even if the person they are living with is of the same sex, the resources of the couple must be aggregated unless:

• there is a contrary interest between the parties in the case for which legal aid is sought
• the person concerned and their spouse or partner are living separate and apart.

In order for the resources of a partner to be disregarded on the grounds that the partner holds a contrary interest in the case it must be shown that the partner is seeking a different outcome from the person concerned.

This is not the same as where a partner may have a different interest in the proceedings, for example, where the partner may be called upon to give evidence which is detrimental to themselves or to the person concerned’s case but nonetheless he/she seeks the same outcome.

The regulation also allows that where the person concerned and partner are no longer living together and have separated then aggregation need not apply.

In considering if aggregation should not apply for this reason it must be shown that not only is there a physical separation but also that the relationship is at an end.

Some periods of physical separation take place without ending a relationship. For example:

• due to the requirements of the person concerned or their partner’s military service or job
• the person concerned or partner is in prison.