Janine Hutson from Harrison Drury’s divorce and family law team offers guidance with regards to the payment of legal costs in divorce.
The legal costs associated with a divorce or separation are an important consideration. Different rules will apply to certain aspects of the proceedings and it is important to understand the distinction between them.
Who pays for the divorce proceedings?
If a petition is issued on the basis of unreasonable behaviour or adultery, then the court is likely to make an order that the spouse found to have behaved unreasonably or committed adultery must pay their spouse’s (the petitioner’s) legal costs of the divorce.
This is likely to be the case unless there is an agreement to depart from this, for example if the petitioner agrees to claim only a contribution to their costs (50% of example), or if the petitioner agrees to pay their own costs of the divorce proceedings.
Who pays the costs of financial proceedings?
Usually in proceedings to resolve financial and property issues, each spouse will be responsible for payment of their own costs. The court is very unlikely to make an order that one spouse be responsible for payment of the other spouse’s costs and will only do so in exceptional circumstances.
Exceptional circumstances would include if the court finds that one spouse has been obstructive in the proceedings, refusing to provide their financial documentation, for example, or refusing to attend court.
Other exceptions to this general rule would be based on the necessity for one spouse to apply for interim maintenance, pending the outcome of the proceeding. If they are successful in this claim, then the court would usually require their spouse to pay the cost of making this application.
What is a legal services payment order?
A legal services payment order can be made to require one spouse to make a payment to enable the other spouse to obtain legal representation. However, there are very specific requirements which must be satisfied before such an order will be made. These orders can be made for one off payments, payment by instalments or payments to cover a specific period in the proceedings.
The court will only make a legal services payment order if they are satisfied that without such an order the spouse will not be able to access legal representation. The court will expect that all other reasonable methods of funding the proceedings should be considered, including taking a loan, using savings or mortgaging a property.
These orders can therefore be difficult to obtain but should be considered in circumstances where one spouse does not have any reasonable means to pay for legal representation and the other spouse would have the means to fund this. The funds provided may need to be repaid at the conclusion of the proceedings, but this would be within the discretion of the court.