Who Pays the Costs of Divorce?

08 May 2019

By Divorce Solicitor, Phil Thomas

A common question we encounter as Divorce Solicitors is "Who has to pay the legal costs for the divorce?" The general rule is that each person getting divorced will pay their own legal fees, and the person applying for the divorce will be responsible for covering Court Fees and other costs. However, in some circumstances it may be possible for them to recover these costs from the other person.

Who Is Responsible for Covering Court Fees, etc.?

The spouse who applies for the divorce is known as the Petitioner and the other person is the Respondent. As they are the person applying for the divorce, the Petitioner will from the outset be responsible for the cost of the divorce.

So, on average the Petitioner's costs will be higher than the Respondent's. The Petitioner is responsible for covering the cost of the preparation and submission of the divorce paperwork, together with obtaining legal advice and paying the Court fees. The Respondent will only be responsible for covering their own legal fees.

In many cases however, particularly where there is blame to be attributed to the Respondent for the breakdown of the marriage, the Petitioner may feel aggrieved at having to pay the legal costs and will instead seek for the Respondent to do so. Divorce law within England and Wales accommodates this, and allows the Petitioner to make a claim for costs against the Respondent. Should the divorce be successful, then at Decree Nisi stage the Respondent can be ordered to pay the Petitioner's costs.

When Can the Petitioner Claim for Costs?

Whether the Petitioner can apply for costs will partly depend on which reason, or 'fact for divorce' has been relied upon in the divorce petition. This is set out as follows:

  • Adultery – The petitioner does have the right to seek a claim for costs against the respondent

  • Unreasonable behaviour – The petitioner does have the right to seek a claim for costs against the respondent

  • Desertion – The petitioner does have the right to seek a claim for costs against the respondent

  • Two years' separation with consent – The Court may not grant an Order for costs as no fault is being attributed to the respondent

  • Five years' separation – The Court may not grant an Order for costs as no fault is being attributed to the respondent

Normally a claim for costs will only be successful in the event of a breakdown of the marriage as a result of one of the fault-based reasons; namely adultery, unreasonable behaviour or desertion. If the marriage has broken down because of the couple's separation, where no blame is being attributed, the Petitioner will not normally be able to claim costs.

How to Claim for Divorce Costs

In the event the Petitioner does wish to apply for costs against the Respondent, then best practice is to reach an agreement with the Respondent on costs before the divorce petition is issued. This can reduce the likelihood of the respondent challenging the divorce over the issue of costs, and it is particularly useful in cases of adultery or two years' separation with consent, as the Respondent may not cooperate in providing documents or admissions if disputes arise over costs.

It is therefore advisable to agree divorce costs with the respondent from the outset, and agree this in writing, before issuing the divorce petition. If costs can be agreed at the outset, then at Decree Nisi stage a 'Costs Order' can be made by the Court, allowing costs to be dealt with on an amicable basis without the need for further Court hearings or disputes.

If costs cannot be agreed but the Petitioner decides to submit the divorce petition nonetheless, the Court may be called upon to deal with any dispute over costs. In this situation, both people may need to attend a hearing for the Court to determine the issue.

The Court will consider if the costs claimed are reasonable, bearing in mind the experience of the representing Solicitor, their hourly rate and the amount of work undertaken. If both of the people getting divorced are represented by Solicitors at a costs hearing, then those costs can also be included (thus increasing the costs further).

The Court has a wide range of powers and discretion in relation to awarding costs and will not only look at the Solicitors' fees, but also the conduct of both people in deciding whether costs should be awarded and at what level.

Once the Court has granted a Costs Order, the Respondent is under a legal obligation to pay these. Failure to do so could result in enforcement action being taken, which can increase the costs further. The danger, of course, is that the amount of legal work in dealing with contested costs can in fact outweigh the cost of the divorce itself. It is therefore important to ensure that the benefits outweigh the costs and, wherever possible, it is strongly advised to try and reach an agreement on costs before issuing divorce proceedings.

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