Legal aid or legal costs assistance; application for

Legal aid or legal aid is granted upon application.

Description

Litigation costs money - on both the plaintiff's and the defendant's side. Those who cannot afford the costs may be entitled to legal aid.

The granting of legal aid means in particular that the applicant only has to pay the court the set installments. This also applies to the costs incurred if the court assigns a lawyer to represent him. However, it does not exempt the applicant from the obligation to reimburse the costs incurred by the opponent in the event that he is unsuccessful.

Legal aid shall be decided separately for each instance.

In family cases and in matters of voluntary jurisdiction, legal aid is called "legal aid". It is essentially based on the same requirements as legal aid.

Legal aid is subordinate to an advance on legal costs. The spouse entitled to maintenance may have a claim against the spouse obliged to pay maintenance to advance the costs of litigation in personal matters (so-called claim for advance payment under maintenance law). This claim is a consequence of the obligation to pay maintenance. It exists only for litigation closely related to the person or needs of the spouse entitled to maintenance (e.g., proceedings concerning marriage, but also matters of guardianship, proceedings concerning honor or freedom, restoration of health, etc.). The same applies to children of full age vis-à-vis their dependent parents. If this advance claim exists and can be enforced in a timely manner, the right to legal aid and legal aid does not apply.

At the request of the person entitled to maintenance, the family court responsible for the maintenance case can oblige the person liable to pay maintenance, e.g. the spouse, to pay an advance on costs for the court proceedings by means of a temporary order.

In labor court proceedings , the provisions of the Code of Civil Procedure on legal aid apply accordingly.

In social court proceedings , the provisions of the Code of Civil Procedure on legal aid apply mutatis mutandis, although the proceedings are free of charge in most cases and representation is compulsory only for proceedings before the Federal Social Court. At the request of the party involved, the court may itself select the lawyer to be assigned. Legal aid is not granted if the party is represented by another authorized representative (e.g. member or applicant of a trade union or association).

In administrative court proceedings , the same provisions apply to legal aid as in civil proceedings.

Prerequisites

The prerequisite is that the applicant is unable to meet the costs of litigation, or can only meet them in part or in installments, based on his or her personal and economic circumstances. In addition, the intended legal action or legal defense must offer sufficient prospects of success and must not appear to be wanton.

In order to determine the applicant's financial capacity, the so-called income to be used must be determined. This is the net income less certain amounts that must be available to the applicant and his or her family for living expenses, the costs of housing and heating, and any extraordinary burdens. Of the remaining amount of monthly income, up to 48 monthly installments equal to half of the income to be used must be applied. The applicant must also use his or her assets to the extent that this is reasonable for him or her.

Legal aid shall not be granted if the costs of the legal proceedings are not expected to exceed four monthly installments plus the partial amounts to be paid from the assets.

There is a reasonable prospect of success if the court considers the legal position of the applicant to be justifiable and is convinced that it is possible to adduce evidence.

Legal action or legal defense is deemed to be wanton if a party who does not claim legal aid would refrain from legal action or legal defense if all the circumstances were reasonably assessed.

Procedure

The application for legal aid must be submitted in writing or orally to the court registry.

The competent court is the trial court, the court dealing with the enforcement proceedings or - if the enforcement is carried out by the bailiff - the district court competent for the debtor's place of residence.

The application must describe the dispute and the evidence. A fully completed and signed declaration of personal and financial circumstances (in particular income, assets, maintenance obligations and other liabilities) as well as supporting documents for the information provided must be enclosed. A form must be used for the declaration, which can be obtained from the court or on the Internet via the federal and state justice portal.

The court may make inquiries to assess the prospects of success and to assess whether the prosecution appears to be wilful. In particular, it may order the production of documents and obtain information. Witnesses and experts shall only be heard in exceptional cases. Before legal aid is granted, the applicant's opponent must normally be given the opportunity to comment.

Special notes

The indigent party must notify the court of a change of address without delay on his or her own initiative.

If the financial circumstances of the needy party improve, he/she must also inform the court immediately. An improvement in income shall be deemed to be substantial if the difference from the gross income previously taken as a basis exceeds EUR 100 not only once. The same limit is to be applied if charges that can be taken into account no longer apply.

If a party's financial circumstances deteriorate, a new application may be appropriate if the application for legal aid was previously rejected.

Forms

  • Form, Bavaria-wide: Antrag auf Prozesskostenhilfe / Verfahrenskostenhilfe
    Please note

    This form has to be signed and sent to the responsible authority. You can sign the form manually and send it by email/fax or sign the form electronically with your qualified electronic signature an send it by (secure) email. If the responsible authority has set up a De-Mail account, you can also send the form by De-Mail using an sender-confirmed message.

Remedy

The granting of legal aid can only be challenged by the State Treasury to a limited extent. The refusal or withdrawal of legal aid may, under certain conditions, be challenged by the party concerned by means of an immediate appeal.

Links to more information

Status: 22.09.2022

Responsible for editing: Bayerisches Staatsministerium der Justiz

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  • Online transactions, Bavaria-wide
  • Online transactions, locally limited
  • Prefillable Form, Bavaria-wide
  • Legal bases, Bavaria-wide
  • Legal bases, locally limited
  • Fees, Bavaria-wide
  • Fees, locally limited
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