Instructing a solicitor can be expensive. Therefore, not surprisingly, people who are divorcing or separating often want to know if there is any chance that their ex will be forced to pay their legal fees for them.
The answer more of than not is that their ex won’t. In civil litigation, orders that the losing party pays the winner’s costs are commonplace; costs “follow the event”. However, in family cases the converse is true. Costs orders are increasingly rare.
One area where costs was frequently an issue until recently was in relation to divorce. (When I say “divorce”, I mean just the divorce itself, not other issues relating to the divorce such as financial remedies or child arrangements.) In fault-based divorce cases, (i.e. adultery, behaviour and desertion cases), costs orders were often made by the court. That made sense; costs are essentially punitive in nature. Someone who had done something wrong should be expected to pay for it. As a result, they were frowned upon in relation to two years’ separation with consent and five years’ separation cases, which were effectively no-fault in nature.
In reality, divorce costs were often negotiated away; the petitioner in the divorce would agree to waive their costs claim, or accept a lesser figure, in return for the respondent’s co-operation with the divorce proceedings. This was frequently prudent; the figure involved were relatively modest, perhaps £1000 to £1500 or so, and spending time and a client’s money on arguing about it was rarely worthwhile.
Costs orders in divorces are now largely a thing of the past. The only way to start a divorce in England and Wales now is on a no-fault basis. Therefore, a costs order would be inappropriate; no-one is to blame as far as the court is concerned (no matter what actually caused the breakdown of the parties’ marriage). This too makes sense; the old system was a nonsense in any event. Adultery or behaviour might have been pleaded in an old-style divorce petition (desertion cases were vanishingly rare), but the reality was that it was not necessarily what had caused the marriage to breakdown, merely what gave rise to the ability to divorce. In a behaviour case, both sides might have behaved badly. In an adultery case, the adultery might have been a symptom of the marital breakdown, rather than its cause; it was possible to divorce due to adultery even where the adulterous relationship did not commence until after the parties had separated and both parties had already concluded that their marriage had irretrievably broken down.
It is still possible to seek an order for costs against the respondent in a no-fault divorce application, but this now requires a separate application to the court, rather than an order for costs as of right that was sought in an old-style fault-based divorce petition. A costs order might be appropriate in a no-fault divorce where the respondent has been uncooperative, for example by failing to acknowledge service of the application, thereby compelling the applicant to incur additional expense proving service of the application. It is also possible where a respondent unsuccessfully disputes a divorce application; it is no longer possible to defend a divorce application – it was almost impossible under the old law – but it is possible to dispute an application. For example, a respondent could dispute it on the ground that the court does not have jurisdiction, e.g. because there are divorce proceedings underway elsewhere in the world, or the parties are already divorced, or were never properly married. If the respondent was successful, no doubt he or she could seek an order for costs against the applicant. Disputed applications are likely to be very rare animals indeed.
Costs orders are also virtually unheard of in relation to disputes about children. In over a quarter of a century of practising family law, including a huge number of cases about children, I have never seen the court make an order for costs against a party in a child arrangements application. I came very close once in a case where the respondent had behaved very badly, with an outrageous breach of a child arrangements order. The judge asked us if we wished to make an application for costs; it was obvious from the gleam in his eye that he felt that one might be justified. My client very wisely instructed me not to seek costs, recognising that, not only was it unlikely ever to be paid, but it would inevitably make the respondent even less co-operative and more vindictive, all of which which would hamper re-establishing meaningful contact with the child.
Again, this makes sense. Not only would costs orders increase the bitterness between parents in dispute, it is also difficult to judge whether or not one party has won and one has lost. In a case where, for example, a mother is denying a father contact and the father then successfully persuades the court to make a child arrangements order for contact to take place, that is a clear win. However, in most cases, the outcome is something of a fudge. The order made by the court often a compromise between the parties’ positions. How can you tell who has won and who has lost?
Costs orders are most often seen nowadays in divorce financial remedy proceedings. However, even then, the presumption is that there should be no order for costs. However, that presumption can be rebutted. Costs orders can be made where a party has been guilty of litigation misconduct, such as failing to comply with court orders to provide financial evidence, hiding assets, or not turning up to court hearings. In cases that proceed all the way to a trial, when considering whether to make a costs order, the court can take into account an open offer made by one of the parties, and whether it should have been accepted and litigation thus avoided.
Costs orders can also be made for special issues within financial remedy applications, such as resolving preliminary issues, applications for maintenance pending suit and interim maintenance, and so on. However, these applications don’t occur in most cases.
The court does have the power to make legal services orders, effectively a form of spousal maintenance for the purpose of enabling the recipient to meet their legal fees. These are quite rare, particularly in small or medium money cases (i.e. the sort of cases that involve most people). They are also not easy to get.
Furthermore, the vast majority of financial remedy applications conclude with an agreement, rather than a trial; the terms of the agreement are usually there shall be no order for costs.
My advice to clients is invariably that they should assume that they will have to pay their own legal fees, and that even if they get a costs order, it is unlikely that it will cover all of their fees, and that if it isn’t paid, they will have to incur further expense enforcing the costs order.
Of course, the best way to avoid the cost of litigation is to avoid litigation completely. Parties should wherever possible use alternatives to court, such as negotiation, mediation, collaborative process or arbitration (collectively known as Alternative Despite Resolution or ADR). These options are usually much less expensive than going to court. However, they are all voluntary in nature. Parties in divorces are under a duty to negotiate, but in the absence of court proceedings, it is impossible to seek sanctions against them for not doing so (and not easy even when there is an application underway). Parties do not have to mediate; the obligation to attend a Mediation Information and Assessment Meeting prior to applying to the court only applies to the applicant, and neither party is obliged to then mediate further. The collaborative process has no compulsion either; although the collaborative participation agreement includes an agreement to not go to court, either party can withdraw from the process and apply to the court. Parties cannot be forced to use arbitration unless that have signed an Arbitration Agreement committing themselves to the process.
There is a question to be asked here; should a party who unreasonably refuses to use mediation or arbitration be penalised in costs if they make an application to the court? At the moment, the law does not provide for this.
Quite aside from the cost to the other party where litigation is necessary due to a refusal to use alternatives to court, there is the issue of limited court resources to consider. The Family Court has for some time suffered from horrendous delays. There are no doubt multiple reasons for this, but one of them is that it does not receive enough funding from the Treasury. Lack of resources means that cases take forever. The court is clogged up with cases that could be resolved using mediation or arbitration. These cases are often issued by litigants in person, who have issued an application without getting any legal advice first.
Where parties receive early legal advice, they are frequently steered away from issuing an application at court and instead towards ADR. The other party would also be encouraged to engage in ADR, rather than insisting “let him/her take me to court”. Whenever I have a client who tells me, in tones of outrage, that their ex wants them to mediate, I say “Good! Trust me. You don’t want to go to court. It is the worst possible place to resolve family disputes.”
The Family Court has been struggling with its caseload for years. It was bad before COVID, worsened during COVID and is still getting worse. Drastic steps to solve the problem are needed. Perhaps if there were penalties for not using mediation or arbitration, the burden on the court could be eased.
If you would like to arrange a consultation with Armstrong Family Law, please call on 01206 848426 or click here.
5 November 2022