The Outer House has held that, in a very exceptional case, a spouse’s legal fees can count as part of her alimentary need when the court sets interim aliment, even though section 22 of the Family Law (Scotland) Act 1985 provides that those fees are not “necessaries” for which the other spouse is liable.
Background
The parties married in July 2003 and have two children, one of whom is under 16. In a contested divorce, the pursuer asked for interim aliment of £16,000 per month. The defender offered £6,000 per month in spousal aliment, together with £2,000 per month in child maintenance, school fees, removal costs and the cost of dental treatment made necessary by the pursuer’s cancer treatment.
After hearing senior counsel on 1st July 2026, Lady Tait ordered the defender to pay £12,750 per calendar month in interim aliment, £8,000 for removal costs within 28 days, and the sums invoiced for necessary dental treatment within 28 days of vouching. The defender’s ability to pay was not the real issue. The question was whether the pursuer’s legal fees could be taken into account at all. The pursuer sought £5,000 per month towards prospective legal fees up to the end of a preliminary proof.
The legal framework
Section 4 of the 1985 Act requires the court, in fixing aliment, to have regard to the needs and resources of the parties, their earning capacities and all the circumstances of the case. Section 6 allows a claim for interim aliment in a divorce action. Section 22 provides that a party’s expenses in a divorce action are not to be regarded as necessaries for which the other party is liable.
The defender relied on the general understanding that legal expenses are therefore outside aliment. The pursuer argued that section 22 only removes the old rule that a lawyer could recover fees directly from the other spouse, and that it does not stop legal costs forming part of alimentary need. The court was referred to the Scottish Law Commission report on Aliment and Financial Provision and to Scott v Scott [2021] SC ABE 40 at [60], where Sheriff Mann declined to discount a party’s legal fees by reason of section 22.
The decision
Senior counsel for the defender fairly accepted that section 22 does not prevent legal fees being considered as part of a claim for interim aliment. His concern was the possible effect on any later decision on expenses and on currently understood practice.
Lady Tait held that the case was exceptional. She relied on these circumstances: the pursuer had no income and no foreseeable earning capacity; she had no realisable assets and could not seek to realise any matrimonial assets; her deferred funding arrangement had expired; she was ineligible for legal aid and unable to obtain litigation funding; she had spent her limited resources on legal fees; she had a claim for a significant capital sum; and the defender had refused to make any payment of capital to account.
The court stated that it neither sought to develop practice nor to mimic a Legal Services Payment Order. The defender had argued that granting the motion risked such an order by the back door, and had pointed out that there is no such mechanism in Scotland. On any later question of expenses, parties may address the effect of this order and the court may have regard to it.
What it means in practice
- The general rule is unchanged. A spouse’s litigation costs are still not recoverable from the other spouse as necessaries.
- Legal fees can sit within interim aliment in an exceptional case. This is an interim, first-instance decision on very particular facts, and it should not be read as a general entitlement.
- Evidence will matter. The court looked at the parties’ resources, the funding available to the spouse and the evidence supporting the claimed need. The circumstances listed above describe this case; they are not a checklist that every applicant must satisfy.
- A request for a payment of capital to account may matter. The court noted that the defender had refused one.
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