A costs order requires one party to the pay the other’s 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.
Since the introduction of no-fault divorce in England and Wales in April 2022, the court’s 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 you’re 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.
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:
There is a dispute as to whether England & Wales is the most appropriate judication to deal with the couple’s divorce.
There has been an issue about the validity of the marriage.
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.
Vardags Limited is a limited company trading as Vardags, Company No 7199468, registered in England and Wales, having its registered office at 10 Old Bailey, London EC4M 7NG. Vardags is authorised and regulated by the Solicitors Regulation Authority (SRA Number 535955). Its VAT number is 99 001 7230.
Vardags uses the term ‘Partner’ as a professional title only, to describe a Senior Solicitor, Employee or Consultant with relevant experience, expertise and qualifications (whether legally qualified or otherwise) to merit the title. Our Partners are not partners in the legal sense. They are not liable for the debts, liabilities or obligations of Vardags Limited. Similarly, the term ’Director’ is a professional title only, to describe an employee or consultant of Vardags with relevant experience, expertise and qualifications to merit the title. It does not necessarily imply that the relevant individual is a director of Vardags Limited.
A list of the directors of Vardags Limited and a list of the names of those using the title of ’Director’ and ’Partner’ together with their official status is available for inspection at Vardags’ registered office.