‘No-fault divorce / dissolution’ who pays the legal costs?
Under the old system of divorce / dissolution there were no fixed rules as to who should pay the costs. When an application was made for divorce / dissolution the person making that application would be required to pay the Court fee (a not insubstantial £593), together with any costs incurred with lawyers drafting the necessary paperwork. There was, however, the option to make a claim that the other person be ordered to pay some or all of these costs. When asked to consider this, the Court would consider all the circumstances including the reason for the breakdown of the marriage. Accordingly, where a divorce / dissolution was based on ‘fault’ through unreasonable behaviour or adultery, it was common for the person considered to be at ‘fault’ to pay the cost of the divorce / dissolution. This compounded the issue of apportioning blame under the previous system. Under the new system the concept of blaming one person for the end of a marriage / civil partnership has been entirely removed, so what happens with the costs, who is responsible for these?
Who will be responsible for the costs of the divorce / dissolution under the new ‘no-fault’ system?
The President of the Family Division has recently released guidance on this very issue which can be found here.
The default position now is that the Court will not make a costs order in divorce / dissolution proceedings, unless there has been clear and obvious misconduct in how one person has dealt with the proceedings. Failing that, the Court simply will not be drawn into any potential argument about laying blame on one person, by requiring them to pay the costs. This does not stop couples from agreeing to share these costs and indeed even under the previous system many couples would agree for these costs to be shared. The difficulty remains, however, that if your spouse or civil partner is adamant that they should not contribute to these costs, save for the exceptional circumstances below, they cannot be forced to help shoulder the burden of these costs. Unfortunately, this therefore still leaves a potential area for separating couples to argue and can leave one party financially vulnerable. Although it is hoped that with the advent of no-fault divorce / dissolution couples will be more co-operative about such matters.
Will the Court ever make costs order under no-fault divorce?
The Court has retained a discretion to make a costs order against either party if for example:
- an individual seeks to evade service of the application for divorce / dissolution such that additional costs have been incurred as a result; or
- where there are disputes as whether the Court in England & Wales is the most appropriate location to deal with the couple’s divorce / dissolution.
What is the procedure to claim costs?
In the limited instances that costs can be claimed this has to be done through an additional application to the Court as the new forms to apply for a divorce / dissolution (whether on paper or online) do not include any ability to claim costs. Where a costs application is made, the matter will be listed for a hearing, with directions given for the couple to file witness statements setting out their position on whether a costs order should be made.
This is a further fundamental change brought in by the shift to no-fault divorce and dissolution. If you have any concerns about the costs of your divorce or you would like help understanding the likely outcomes in terms of your finances or arrangements for your children, please contact our specialist family team who will help guide and advise you.