The general rule on who pays the legal fees in a divorce is that each person getting divorced will pay their legal costs and the person applying for the divorce (the petitioner) will be responsible for covering the court fee (which is currently £550) and other costs.
Zoe Carter, Solicitor from the Stowe Family Law office in Cheltenham, joins us to explain in more detail about who pays the legal fees in a divorce?
Does the petitioner always have to pay for the court fees?
No. In the majority of cases, the petitioner pays the court fee however some couples agree to split the court fees between them. You can also make an application for costs from the other person (further details below).
Can the petitioner claim for the divorce court costs?
If you are the petitioner, you can make an application for costs from the other person (respondent).
Normally, a claim for costs will only be successful in the event of a marriage breakdown where a fault-based reason, or ‘fact for divorce’ has been relied upon i.e. adultery, unreasonable behaviour or desertion.
If you are on a low income or in receipt of state benefits including Jobseekers Allowance, Income Support, Income-related Employment and Support Allowance and Universal credit, you can apply to the court for help with these fees by completing an EX160 form “Apply for help with fees”.
How can the petitioner claim for divorce court costs?
If the petitioner wishes to apply for costs against the respondent then best practice is to reach an agreement on costs before the petition is issued with the court. If costs cannot be agreed at that stage the petitioner can include a claim for full costs in the petition itself.
If costs are agreed at the Decree Nisi stage, a ‘costs order’ can be made by agreement. If costs cannot be agreed, the petitioner can continue with their application for costs and the court will need to determine the issue. The court will need to consider if the costs claimed are reasonable and will also look at the conduct of both parties before and during the divorce process.
Does a respondent have to pay for divorce court costs?
If a costs order is made the respondent is under a legal obligation to comply and pay and if there is a failure to do so, this could result in enforcement action being necessary.
It is strongly advised to try and reach an agreement on costs before the divorce is submitted to the court. The overwhelming majority of cases proceed undefended so that no attendance at Court is required in connection with the divorce but the issue of costs is one that may see attendance at court necessary.
Additional costs may also be incurred if complications arise in proceedings such as where a spouse does not file the Acknowledgement of Service with the court.
Are there any other costs to consider in divorce?
Divorce often has two costs elements: the itemised court fees and the solicitor’s costs for negotiating a financial settlement and or child arrangements.
It is difficult to forecast how much the solicitor’s cost will be at the outset as it depends on a number of factors including the willingness of both parties to negotiate and the complexity of the family finances and proposed child arrangements, if applicable.
The majority of cases are resolved by negotiation, usually via solicitors, once the financial disclosure has taken place, with each party bearing their costs. Whilst it is possible to apply for a costs order in certain circumstances, the outcome of such an application cannot be guaranteed and the usual course is that each party covers their own legal costs.
If a settlement is reached, we recommend the terms agreed are recorded in a consent order. There is a Court fee of £50 which has to be paid to the Court which is often split between the parties.
Is there a difference in costs in fault-based divorce, adultery or unreasonable behaviour?
The Petitioner can apply for costs and the success of this will partly depend on which reason or “fact” is given in the petition.
Normally a claim for costs will only be successful if there is a ‘fault-based’ reason so where there has been adultery, unreasonable behaviour or desertion.
If ‘blame’ is not being attributed for the marriage breakdown then it is less likely that any claim for costs will be successful.
Is it recommended to claim for divorce court costs? Or can it hold up the process?
If the Respondent does not agree to pay towards the costs of divorce then it could cause unnecessary issues which may in turn increase costs and delays.
It is, therefore, best practice to try and reach an agreement regarding the issue of costs before the divorce petition is even sent to the court to be issued. By doing this you can reduce the likelihood of the Respondent challenging the issue of costs later on down the line.
Get in touch
If you would like any advice who pays the legal fees in a divorce, divorce or other family law issues please do contact our Client Care Team to speak to one of our specialist divorce lawyers here.