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Costs Orders in Divorce

What is a costs order?

A costs order requires one party to the pay the others legal costs in financial remedy proceedings. In general, each party will be responsible for their own legal costs, but there are specific circumstances where a costs order may be made by the family court.

Costs orders under no-fault divorce

Since the introduction of no-fault divorce in England and Wales in April 2022, the courts approach to dealing with the costs of a divorce have changed significantly.  

Under the old divorce law, there were no fixed rules as to who should pay the costs. You could claim for costs in your divorce petition and the court had the ability to determine who should pay the costs of the divorce – made up of the court fee and any solicitors costs. The judge would consider all the circumstances of the cases, including the reason for the breakdown of the marriage, and you would typically find that the court made a costs order against the person at fault where the divorce was based on adultery, unreasonable behaviour and desertion.  

However, under the new divorce law, there is no longer a fault-based element to divorce. Although the court maintains discretion to make a costs order, the circumstances will now be very limited, as directed by the President of the Family Division in their guidance on the issue of costs under no-fault divorce.

The general rule and starting point in family proceedings is that in financial remedy proceedings the court will not make an order requiring one party to pay the costs of the other party. This is commonly referred to as the no order as to costs provision. 

If youre considering or going through a divorce and have any concerns about costs or need assistance understanding potential outcomes, we can help. Click below for a free initial consultation with one of our expert divorce solicitors. 

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When will the family court make a costs order?

That said, the court has retained a discretion to make a costs order against either party. 

The exceptions to the default position of the no order as to costs provision is where there has been clear and obvious misconduct in how one person has dealt with the proceedings. For example, where one spouse has purposely evaded service of the paperwork and refused to cooperate in the divorce, so the other spouse has incurred extra costs. 

The court can also make a costs order if: 

How do I apply for a costs order? 

In the rare instances where costs can be claimed, an additional application to the Court is required, as the new divorce forms (both paper and online) do not include a provision for claiming costs. 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.  

Vardags team of top divorce lawyers delivers a bespoke legal service to HNW and UHNW individuals, their families, and businesses. 

The information on this website is intended as a guide and does not constitute legal advice. Vardags do not accept liability for any errors in the information on this website, nor any losses stemming from reliance upon the statements made herein. All articles and pages aim to reflect the legal position at time they were published, and may have been rendered obsolete by subsequent developments in the law. Should you require specialist advice, tailored to your situation, please see how Vardags can help you.

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