One thing that many people are worried about when faced with the prospect of divorce proceedings is the legal costs that can be incurred both in terms of Solicitors fees and the Court costs. Currently the Family Courts charge a fee of £410.00 to issue a divorce petition and Solicitors fees vary from firm to firm. The person who completes the petition and sends it to the Court (the Petitioner) is often the party who feels aggrieved at the behaviour of their estranged spouse (the Respondent) and they often question why they should have to pay these costs when they have only had to start the case because of the actions of their ex. On the flip side, the Respondent might say that as the Petitioner is the one seeking the divorce, they should foot the costs.

In the divorce petition there is a small box which asks the Petitioner whether he or she wants to claim their costs back from their spouse. In practice I would always tend to advise clients to tick this box. The reason for this is that if the Respondent does not allow the proceedings to go ahead on an undefended basis or they do not return their signed form (known as an acknowledgement of service) to the Court then the Petitioner’s legal costs are going to increase and they might later regret not having made a claim for the Respondent to contribute. The claim can always be withdrawn or reduced at a later stage if the Respondent co-operates.

When the petition has been sent to the Court a copy is served on the Respondent. The Respondent has to complete an acknowledgement of service indicating whether they intend to defend the divorce and whether they object to paying the costs of the proceedings.

The Petitioner then applies for a conditional divorce (known as a Decree Nisi) and as part of that application they will need to prepare a statement indicating whether or not they are still seeking a costs order from the Court. Before setting a date for the Decree Nisi to be pronounced the Judge will look at all the paperwork on the file to check that the Petitioner has proven their case and he or she will consider any objections that have been made to the making of a costs order. The Judge might then do one of three things:

1.       Set a date for the Decree Nisi to be pronounced with no costs order being made.

2.       Set a date for the Decree Nisi to be pronounced with an indication that a costs order will be made.

3.       Set a date for the Decree Nisi to be pronounced and also set a date for a hearing to deal with the issue of the costs.

In the event that the Judge gives an indication that a costs order will be made then the Respondent is still able to write to the Court and the Petitioner or their Solicitors asking for a hearing on the issue of costs and the Judge might still list a hearing as per option 3 above.

If a hearing date is set then this can leave both parties with a difficult decision to make in that if either party asks Solicitors to represent them at that hearing they will incur additional legal costs for the Solicitor’s attendance. If, for example, the Petitioner asks a Solicitor to attend then the Solicitor might charge in the region of £600.00 plus VAT to represent them. If the Petitioner succeeds at Court in obtaining a costs order against the Respondent they might ask that the Respondent should also pay the further legal costs incurred in attending at that hearing. However, there is always a risk that the Petitioner will not succeed or will only get a partial award, in which case they are unlikely to recover the additional costs. Furthermore, if the Petitioner is unsuccessful in their claim and the Respondent has incurred additional costs in asking a Solicitor to represent them at the hearing then the Petitioner might find themselves in a position whereby they have their costs of the divorce to pay, the costs of their own Solicitor for attending the hearing and the costs of the Respondent’s Solicitor for attending the hearing. The Respondent is equally at risk that they could have the entirety of the costs and both sets of additional costs to pay.

The most sensible course of action is to try to agree what will happen with the costs outside of the court arena. It is often considered sensible to propose to the Respondent that provided they allow the divorce to proceed undefended and they return their acknowledgement of service to the Court in time then the costs claim will either be reduced to 50% or even withdrawn.

Both parties need to bear in mind the sum that is being argued over and consider whether the legal costs being racked up by both in arguing over the issue is actually outweighing the original amount in dispute.

It should be noted that the above relates only to undefended cases and reflects what the writer has observed in local courts. Practice in relation to the making of costs order can vary from region to region.

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If you are living abroad and you are thinking about getting a divorce in this country you really should take legal advice before commencing any proceedings as the last thing that you will want to do is incur a large Court fee to start your case and then find that the Court will not deal with the matter. If you would like more information send us an email so that we can advise you on the best course of action available to you.