Costs – should your ex pay your legal costs?

Costs in terms of divorce cases are treated differently to finance cases. In divorce, costs usually follow the event i.e. the person responsible for the breakdown of the marriage should bear the costs. In finance cases, as with children cases, these are subject to the general “no order as to costs” rule which means that the court will generally not make an order for one party to pay the costs of another.

This rule is subject to a caveat. The court may make an order for costs at any stage of the proceedings where it considers it appropriate to do so because of the conduct of a party in relation to the proceedings, whether that conduct was before or during them. This is also known as ‘litigation misconduct’. When determining whether an order should be made due to litigation misconduct, the court must have regard to:

  • Any failure by a party to comply with the rules, any order of the court or any practice direction which the court considers relevant.
  • Any open offers to settle made by a party. Examples include:
    • open offers to settle that are manifestly unreasonable; and
    • failure to make any open offers.
  • Whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue and the manner in which a party has pursued or responded to the application or a particular allegation or issue. Examples include:
    • a party who pursues an issue such as alleged concealed assets in the face of all evidence; and
    • a party who causes the other unnecessary work by failing to provide necessary information
  • Any other aspect of a party’s conduct in relation to proceedings which the court considers relevant. The conduct must increase the costs of the other party.
  • The financial effect on the parties of a costs order.

It is important for the party seeking a costs order in financial remedy proceedings, to make an open statement to that effect. There are many reported cases where the court has been willing to make orders against a party due to litigation misconduct. Here are a couple of examples:

In the case of Joy v Joy-Marancho & Ors (2015) the court considered that the husband was deliberately organising his financial affairs in the form of a trust to enable him to access the funds once the proceedings had concluded. The husband admitted to lying in evidence and was ordered to pay all of the wife’s costs which stood at £334,000.

In the case of MFv SF (2015) rather than making a costs order against the wife for her unreasonable approach to the financial proceedings, the court awarded her with less than the amount she would have received because of her conduct.

If you would like to discuss your family matter in more detail or if you would like to find out more about seeking costs against your ex-partner or spouse, our experienced solicitors at Hunter & Uro can help you. Serving Bedford, Northampton and Milton Keynes, our lawyers can help you with your family law and divorce matters.  Contact us on 01234 889777 for a free consultation.



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