Who pays the costs of divorce and related financial proceedings?

In England and Wales, there is one ground of divorce, which is that the marriage has broken down irretrievably. This has to be supported by one of five facts, being:

• The Respondent has committed adultery and the Petitioner finds it intolerable to live with the Respondent.
• The Respondent has behaved in such a way that the Petitioner cannot reasonably be expected to live with the Respondent.
• The Respondent has deserted the Petitioner for a continuous period of at least two years immediately preceding the presentation of the Petition.
• The parties to the marriage have lived apart for a continuous period of at least two years immediately preceding the presentation of the Petition and the Respondent consents to a divorce being granted.
• The parties to the marriage have lived apart for a continuous period of at least five years immediately preceding the presentation of the Petition, in which case consent is not necessary.

The Court has discretion to order the Respondent to pay the costs. If the Petition is based upon the fault of the Respondent i.e. adultery or unreasonable behaviour, the Petitioner can ask the Court to make an Order for the Respondent to pay the costs of the divorce proceedings. This Order applies to the costs of the divorce proceedings only and not to the costs of the financial proceedings.

The current Rules in respect of financial proceedings on divorce are that there will be no Order as to costs as between the parties. This means that the Husband and Wife each pay their own costs.

However, a Costs Order may be made at any stage of the case, where one party’s litigation conduct justifies it. If, for example, a spouse failed to comply with the Court Rules for financial disclosure or ignores any Court Order, the Court could make an Order against that spouse in respect of that part of the case. It is often the case that one spouse holds more of the assets than the other spouse, which could result in unfairness, if the poorer spouse cannot afford legal costs needed in order to achieve a satisfactory financial settlement. In these circumstances, the poorer spouse may need to investigate obtaining a litigation loan to fund the proceedings, until settlement or trial. There are also circumstances in which the poorer spouse can obtain an Order for maintenance pending suit, i.e. maintenance to tide the spouse over until final settlement or Court Order, which can include a claim for contribution from the richer spouse towards their costs on an ongoing basis.

With regard to proceedings in relation to children, again, the starting point is that each spouse pays their own costs, although there are circumstances when the Court can order one spouse to pay the other’s costs due to the manner in which they have conducted the litigation.