How will costs be treated in a no-fault divorce
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From 30 September 2021, the cost of a divorce will rise from £550 to £593. At the moment, where the divorce is based on adultery, behaviour or desertion i.e. on a ‘fault’ basis, it is common for the applicant to claim a contribution from the respondent to this court fee and their legal fees, to reflect the increased cost of being the applicant in proceedings.
Costs orders are less common when the divorce is based on two or five years of separation i.e. on a ‘no-fault’ basis. At Shoosmiths, we already try to ease tensions between the parties by seeking to agree the costs position before the application is made. But, from April 2022, the law is changing as to the basis on which divorce can be applied for.
‘No-fault’ divorce is set to replace the above entirely so it will no longer be possible to proceed on a ‘fault’ basis. This will enable married couples to get a divorce without having to blame one another. It will also be possible for the parties to apply for a divorce jointly. This change has been long awaited, and it is hoped that it will make the divorce process more amicable. However, it is not yet clear how costs will be treated where there is no fault relied on and/or the parties are applying jointly. The Nuffield Foundation considered this issue in their recent report ‘Emotionally charged: Costs on divorce and dissolution’.
Though the report found that some issues around costs will be alleviated by having a no-fault system, it still found that parties attributed moral weight to whether and how costs in the divorce were paid. This may mean that though, legally, there is no fault associated with the divorce, the parties may use costs as a way of attributing blame to one party. There is also a concern that the cost of divorce is a further financial strain post-separation, and this will only be exacerbated by the increase in court fees.
These findings have led the Nuffield Foundation to recommend that costs in divorce should only be claimable at the conditional order stage of the divorce (currently called decree nisi) and to only be claimed in respect of litigation misconduct by the respondent. The costs being claimed must be attributable to the respondent’s litigation conduct which has caused additional costs to the applicant. This means an applicant’s claim for the costs of the application fee and initial cost of legal advice, or any costs related to conduct before the application would not be successful. In rare cases, the respondent may be able to claim costs from the applicant where the applicant has pursued a divorce petition, they know is fraudulent or outside of the jurisdiction. The report also recommends that when joint applications are permitted next year, determining who pays the costs should be left to the parties.
It is hoped that that no fault divorce will enable couples to resolve matters more amicably, and that this attitude will continue in respect of the costs of the divorce. However, it is still unclear how the courts will treat costs where no fault is alleged and/or where the parties have made a joint application. Though the Nuffield Foundation Report provides some interesting and practical recommendations on the matter, whether they will be implemented remains to be seen.
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