The Cost of Divorce
November 25, 2020
When seeking the advice of a family law solicitor, one of the first questions that clients ask is often: “How much is this going to cost me?”
That question is understandable, given that obtaining a divorce can be both stressful and costly.
Unfortunately, there is no easy answer to that question. The costs of the case depend upon various factors, including the complexity or otherwise of the couple’s finances, whether or not both parties are co-operative with each other, and, most importantly, whether or not they are able to reach a financial agreement.
In addition, in the event of a dispute in relation to the children, the most important factor is whether or not the couple can be persuaded, by either their legal advisers or a mediator, to resolve their differences by agreement rather than at court. Otherwise, the only alternative is to proceed to a court hearing which leads to increased costs as of right.
Clients often ask whether their spouse can be forced to pay their legal costs. Until recently, the general rule was that in most circumstances, each party pays their own legal fees. That rule was applied even where one party had acted improperly, or had been deliberately evasive or difficult to deal with.
However, the position has now changed somewhat. In an attempt to encourage parties to settle, there are new rules which require parties to make open offers of settlement. If a party refuses to comply with the rules, or refuses to negotiate openly and reasonably, the other party can apply for a costs order. A costs order forces the non-compliant party to pay a contribution towards the other party’s legal fees.
The result is that it is now easier to secure a costs order in financial remedy proceedings. That will come as a welcome change to many clients who are open to negotiation and want to settle their cases without incurring significant costs. It is also a welcome change for lawyers, who often find non-disclosure and evasive litigation conduct as frustrating as their clients do.
However, the new rules have only just been introduced, and have not yet been tried and tested. We will have to wait and see whether the judges are more or less liberal when it comes to making costs orders in respect of financial disputes in the family courts.