When you get divorced, there are usually two lots of legal costs that you have to pay: the costs of actually getting divorced (petition – decree nisi – decree absolute) and the costs of sorting out the finances (disclosure – negotiation – court order). If there is a dispute over children, or there is an issue of domestic viloence, there will be additional costs in dealing with those matters as well.

Unless there are no finances to sort out, or they’re very simple indeed, sorting out the finances is usually more expensive than the divorce itself.

Most of the costs of the ‘main suit’ of a divorce (petition – decree nisi – decree absolute) fall on the petitioner in the first instance, because it is the petitioner’s solicitor who does nearly all the work.

Typically, the petitioner’s solicitor will spend about 3 hours on the main suit. At our hourly rate of £160, that comes to about £892 (£160 x 3 hours + VAT at 15% + court fees of £340).

The respondent often makes a contribution to the petitioner’s costs, either by agreement or by order of the court.

A divorce petition based on adultery or unreasonable behaviour will normally contain a claim for costs. That means that the petitioner asks the court to order the respondent to pay all his/her costs of the divorce (the ‘main suit’, that is, not any other aspect such as financial matters or children).

Typically, the respondent indicates that he/she will cooperate with the proceedings (by completing the ‘acknowledgement of service’ form and returning it to the court) provided that the petitioner drops his/her claim for costs. The petitioner responds by saying that that would be unfair. They agree on a figure that the respondent will contribute – usually about half of the total cost.

It is obviously wasteful and counterproductive to run up costs arguing about costs. On the other hand, the amounts involved can be significant – the petitioner’s costs can be the better part of £1,000.

It can make it easier to agree on the size of the respondent’s contribution if the couple agree that the money can be paid later when it is available – for example on completion of the sale of the matrimonial home.

If a divorce petition contains a claim for costs, and if the couple have not been able to agree on how much the respondent is going to contribute to the petitioner’s costs, the court will make the decision. This is done either at the time that decree nisi is pronounced, or at a separate short hearing fixed for the purpose.

At the costs hearing, the parties may be represented by a solicitor, but usually it is uneconomic to instruct a solicitor, simply because the cost of doing so can be greater than the amount of costs being argued about. The district judge listens to arguments from each party and makes a decision. Arguments based on the ability to pay (“I can’t afford it…”) will not carry any weight at all – the district judge is interested only in who caused the breakdown of the marriage. Since it is impossible to establish that at such a short hearing, the district judge will often take a common sense view and order the respondent to pay about half the petitioner’s costs.

Sometimes, only one of the two parties turns up to the costs hearing. If that happens, the party who has turned up usually gets what they want: an order requiring the respondent to pay all the petitioner’s costs (if it is the petitioner who has turned up), or no order for costs (if it is the respondent who has turned up).

In most cases the parties appreciate from the outset that it makes sense to do a deal on the costs of the main suit of their divorce. As a result, costs hearings are relatively rare.

More next week.

More next week.