The general rule on who pays legal costs in a divorce is that each person is responsible for paying their own legal costs. The cost of divorce includes the court fee and the costs of the legal representatives you instruct to assist you with the divorce. You and your spouse may agree at the outset who is to be responsible for the costs of the divorce, including the court fee.
Previously, the individual applying to the court for the divorce (the petitioner), could tick a box which would require the other spouse in the divorce proceedings (the respondent) to reimburse the fees incurred by the petitioner. This would include the £593 court fee and any solicitor fees. The court could then make a costs order in favour of the petitioner. When a costs order is made for you to pay your spouse's legal costs in divorce, you are under a legal obligation to comply and pay. This was common in fault decree based proceedings i.e. proceedings based on adultery, unreasonable behaviour or desertion.
The Divorce, Dissolution and Separation Act
The Divorce, Dissolution and Separation Act 2020, which came into force April 6 2022, removes the requirement to establish fault in a marriage. The divorce is unlikely to be disputed and will not involve any consideration by the court of the reasons for or responsibility for the breakdown of the marriage.
Where an application is disputed, the grounds for opposition will be limited to issues about the court's jurisdiction to hear the case or about the validity or subsistence of the marriage. It is at the court's discretion whether a costs order is made against either party. Consequently, the circumstances in which an order for costs is made for you to pay your spouse's legal costs in divorce can only be established where there has been clear misconduct of one party's method of dealings with the divorce proceedings, thereby extremely limiting the likelihood of a costs order being made.
In summary, since the enactment of the Divorce, Dissolution and Separation Act 2022, the default position is that the courts are extremely unlikely to make costs orders in such proceedings. Instead, it will be common practice that a more amicable way of dividing costs will be considered and utilised.
Originally published 25 July 2023.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.