When divorcing, clients often ask us if they can make their ex-spouse pay their legal fees.  

In civil litigation, orders that the losing party pays the winner’s costs are commonplace and this may be where the confusion comes from. However, in family cases the opposite is true and costs orders are increasingly rare.

In the past, in fault-based divorce cases (for example adultery, behaviour and desertion cases) costs orders were occasionally made by the court as a punitive measure.

Since the introduction of ‘no-fault divorce’ in 2022, costs orders in divorces have become largely a thing of the past.  The sole ground to present an application to the court for a divorce is on the basis that the marriage has broken down irretrievably and the applicant is not required to provide any further details. They simply make a statement to the court that the marriage has broken down irretrievably.

The starting point in financial remedy matters is that each party is responsible for the payment of their own legal costs. 

The court will generally not make an order requiring one party to pay the costs of the other party and this is referred to in rule 28.3(5) of the Family Procedure Rules.

In certain cases, however, the court does have the power the make an order for costs against one party. There are circumstances where a court can make an order for costs following the ‘conduct’ of one party.

However the conduct complained of does not relate to the behaviour of the spouse during the marriage but instead must relate to the proceedings and include (amongst others) a failure to comply with the court orders, the Family Procedure Rules, any open offer to settle etc.

Another situation in which the ex-spouse would be made to pay for legal costs is if the affected party is unable to pay for their own. They can apply for a Legal Services Payment Order which is an order which would mean an ex-spouse would make payment for legal costs. A formal application has to be made to the court and the person would need to demonstrate that there are not sufficient funds to pay for legal services, whereas the ex-spouse can pay.

Be aware, the threshold for these types of orders is high and the court has to be satisfied that all other avenues of funding have been exhausted.

In short, making an ex-spouse pay for legal costs is now a rarity. If you are considering going down any of these routes to seek to make an ex-spouse pay legal costs, we would strongly suggest you take legal advice.

If you would like help with this, contact us on 0191 500 0777.