The starting point and general principle for the court in regard to financial proceedings and divorce costs is The Family Court Proceedings Rules (2010); Rule 28.3.5.:
‘The court will not make an order requiring one party to pay the costs of another party’
The assumption is, then, that you will pay your legal bills and your ex-spouse will pay their own (this is different from cost orders in divorce, of which more in a later post). However, there are occasions where the court will make an order for costs; they are allowed to depart from the basic principle if the conduct of one party before or during the proceedings requires it. In particular the court has to have regard for ‘any failure by a party to comply with the rules, any order of the court, or any practice direction which the court considers relevant’, and ‘the manner in which a party has pursued or responded to a particular allegation or issue or any other aspect of a party’s conduct in relation to proceedings which the court considers relevant.’ Where the court finds that there has been ‘litigation misconduct’, an order for divorce costs may be made.
Litigation misconduct includes behaviour by one party that results in the other party or parties incurring unnecessary costs. This could be, for example, an abortive hearing because of non-attendance by one party for no good reason, meaning that money has been spent on court fees and legal representation even though the hearing did not take place. It could be an open offer to settle made by one party which is more than reasonable but is ignored by the other party, resulting in a lengthy and expensive litigation process which could have been avoided. Or it might be that an issue such as conduct has been raised by one party but where there is no reasonable chance of the issue being successful in court, meaning that a lot of time and effort has to be expended for no real outcome. In circumstances such as these, it is likely that a cost order relating to that issue is made against the offending party.
The court will also consider the financial effect on the parties of any cost order. If a no cost order would mean a substantial or disproportionate burden upon one party above the other (perhaps because they have fewer assets, for example) then the court may decide to make a costs order (but this is quite rare).
The basic principle however for financial proceedings is that you and your ex-spouse will each pay your own costs, unless there is litigation misconduct by either party. This means that before you start proceedings you should take legal advice about how much you might be expected to pay, and plan accordingly to meet that obligation before you begin.
If you would like further information about financial proceedings, or any other aspect of your divorce costs, call Andrew Isaacs Solicitors for friendly and helpful advice.