Who Pays the Costs in Divorce Cases?

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It is important to understand that there may be up to three sets of costs associated with a divorce; the costs of getting the marriage dissolved, costs relating to proceedings regarding the children and costs relating to the property and financial aspects of the divorce.

The costs relating to the divorce itself are usually relatively modest and very often the Petitioner (person who starts the proceedings) will pay the costs themselves and not bother to seek a contribution from the other party. Alternatively, the parties may agree that the Respondent (the person who receives the Divorce Petition) will pay half of the Petitioner’s costs. This is because, even if the Respondent has engaged a solicitor and has their own costs to pay, the Respondent’s costs will be less than the Petitioner’s costs as the Petitioner’s solicitor does most of the work in connection with the process and has to pay the £550 court fee.

On some occasions, usually where the divorce is on the basis of the Respondent’s adultery or unreasonable behaviour, the Petitioner may seek an order that the Respondent pays their costs in full. The Respondent has an opportunity to respond to the claim on the Acknowledgement of Service form. The District Judge then certifies whether the Petitioner is entitled to an order for costs. If either party wishes to contest the Judge’s decision they can attend a hearing and make representations.

In proceedings regarding the arrangements for the children, the order is always (apart from a small number of exceptions) “No order as to costs”. This means that each party pays their own legal costs. Presumably, the policy decision behind this is that people should not be discouraged from making applications where the interests of a child are at stake.

With regard to financial remedy proceedings, the costs order is also nearly always “No Order as to costs”. The exceptions usually relate to “litigation misconduct”. For example, a party may be ordered to pay the costs of the other party if they fail to attend a hearing, don’t file documents on time or fail to comply with court orders.

On 27th May 2019 the rules were amended to provide that the court will take a broad view of conduct when considering costs and will generally conclude that a failure to openly negotiate reasonably and responsibly will generally amount to conduct in respect of which the court will consider making an order for costs.

The Family Procedure Rules Committee is now consulting on whether to re-introduce consideration of whether a party has acted reasonably in the course of negotiations by taking into account how the final order compares to offers which have been made “without prejudice save as to costs”.

Until 2006 the court would almost always make an order for costs against a party who failed to “beat” an offer by the other party that was made on a “without prejudice as to costs” basis. The downside to this was that it was often difficult to determine whether a party had beaten a particular offer, particularly where there were a number of assets to be divided between the parties. The benefit was that the rule forced parties to act reasonably and give serious consideration as to whether they should accept or reject a particular offer. It is not intended that this rule will be re-introduced in such a stringent way.

If you are concerned about issues relating to the legal costs of family law proceedings, please contact our Head of Family Law, Joanna Toloczko on 020 3861 5155 or at jtoloczko@meaby.co.uk