If you file the application for a divorce, you are called the petitioner and your ex-partner is the respondent. When the divorce is granted, the phrase you might hear is that ‘costs follow the event‘. That means that the divorce is granted to the petitioner, and following that, so is the order for costs. Unlike costs in financial proceedings (where it is assumed that each party will pay their own costs), in divorce, costs are usually payable by the respondent.
There are circumstances where this might not happen: if you have agreed not to seek a costs order, for example, or you have agreed to accept an amount or a contribution rather than the full costs. In these cases you might be liable to pay some or all of the costs yourself. If you haven’t done any of those things, then even if you haven’t sought costs at all, you will get a costs order.
If you are the respondent, you have to show good cause why costs shouldn’t follow the event in order to prevent a costs order not to be made against you. One example of good cause might be that you thought you were going to be the one petitioning for divorce; you have followed the Law Society’s Family Law Protocol and written to your ex-partner to give them notice of your intent to file a divorce petition. They then quickly file their own petition first, and you become the respondent – is it right that you should have a costs order made against you? The Family Law Protocol would say not – behaviour like that is wrong and will meet the displeasure of the court and this will have an impact on any order for costs. However, there may be good reason for not following the protocol (and if you are unsure, you should take legal advice); and because each case is dependent upon its circumstances, there will be times when the court will not award costs to the petitioner.
So things are not always as clear-cut as they might first appear, but the general rule is a good place to start: divorce costs usually follow the event; they are usually paid by the respondent. No two cases are the same, so if you would like advice on your particular circumstances, you should contact a solicitor who can consider the details of your individual case. To make an appointment with Andrew Isaacs, simply give us a call: details are on the right.