One of the most common assumptions people make when going through a divorce is that the person in the wrong will automatically be ordered to pay the other side’s legal fees. However, that is usually not how family law works, and in most divorce-related cases, each person is expected to pay their own legal costs.
That said, there are situations where the court can order one party to contribute towards, or fully pay, the other person’s costs. Whether that happens depends heavily on the type of proceedings involved, the conduct of the parties, and whether the court believes one side has behaved unreasonably.
Understanding when legal costs can be recovered, and when they probably cannot, is important before deciding whether to pursue a costs claim.
Does the type of family case matter?
The type of family proceedings involved can make a significant difference to how the court approaches legal costs. The rules and expectations surrounding a straightforward divorce are often very different from those applying to financial remedy proceedings or disputes involving children.
Most divorces proceed administratively, with limited court involvement, and because of this, costs orders in pure divorce proceedings are fairly rare unless one party has deliberately caused unnecessary complications. For example, if someone persistently ignores paperwork, refuses to cooperate with service of documents, or makes meritless applications designed solely to delay the process, the court may consider ordering them to pay some of the additional costs created.
Financial remedy proceedings are often where costs disputes become more serious. Although the general principle still remains that each party pays their own fees, the court expects both sides to engage openly and reasonably. Financial proceedings rely heavily on honest disclosure, sensible negotiation, and compliance with court directions, so if one party frustrates that process, costs consequences become more likely.
The court’s central concern in children matters is the welfare of the child, and judges are often cautious about making costs orders that could worsen hostility between parents. However, that does not mean costs orders are impossible. If a parent behaves particularly unreasonably during proceedings, for example by making knowingly false allegations, repeatedly breaching court orders, or using the litigation process to harass the other parent, the court may decide a costs order is justified.
What behaviour might justify a costs order?
The family courts generally reserve costs orders for situations where one party’s conduct during the proceedings has gone beyond ordinary disagreement or emotional conflict. Divorce and separation are naturally stressful, and judges understand that tensions often run high. However, there is a clear distinction between understandable emotional behaviour and conduct that unfairly increases legal costs or obstructs the administration of justice.
One of the clearest examples is financial non-disclosure. In financial remedy proceedings, both parties are under a duty to provide full and frank disclosure of their financial circumstances. Where someone attempts to hide assets, understate income, conceal investments, or fail to disclose property interests, the court may view this seriously. If the other party has had to spend large sums investigating missing information or forcing disclosure through the court process, a costs order may follow.
Ignoring court directions can also lead to costs consequences, and the court expects parties to comply with deadlines, attend hearings, exchange documents, and cooperate with procedural requirements. A person who repeatedly fails to do so may end up causing unnecessary delay and expense for everyone involved. Judges are often willing to penalise persistent non-compliance where it has fundamentally increased costs.
There are also cases where one party pursues arguments that are plainly unrealistic or designed primarily to exhaust the other side emotionally or financially. The court does not punish people simply for defending their position or seeking what they genuinely believe is fair. However, where someone advances hopeless arguments, refuses to negotiate sensibly, or repeatedly makes unnecessary applications, the court may conclude that their conduct has crossed the line into unreasonable litigation behaviour.
In more serious cases, litigation misconduct can involve dishonesty, forged evidence, intimidation, harassment through proceedings, or deliberate attempts to manipulate the process. In those circumstances, the court may be far more willing to order substantial costs payments.
What usually will not qualify for recovering costs?
Many people enter divorce proceedings believing that the court will financially punish a spouse for hurtful or morally questionable behaviour during the marriage itself. The fact that one spouse had an affair, behaved selfishly, ended the relationship abruptly, or caused emotional pain will not normally justify a costs order. Family judges are generally not concerned with punishing marital wrongdoing; rather, their focus is on resolving legal disputes fairly and efficiently.
Similarly, ordinary conflict between separating couples will not usually justify recovering legal fees. Arguments over parenting arrangements, strained communication, resentment, or personality clashes are all common features of family breakdown. The court expects a certain level of emotional tension and will not ordinarily make costs orders simply because one party has been unpleasant or difficult on a personal level.
What if my ex argues against paying?
A spouse facing a costs claim may argue that their conduct was reasonable in the circumstances or that the dispute itself was genuine and required determination by the court. They may also claim that both parties contributed equally to the hostility or delay. In some situations, arguments focus less on principle and more on proportionality, with one side asserting that the legal fees claimed are excessive or unreasonable.
The court will usually stand back and look at the overall conduct of the litigation rather than focusing on isolated incidents. Judges know that family disputes are emotionally charged and that fault is not always one-sided. Even where misconduct is established, the court may reduce or limit a costs order if it believes both parties behaved poorly or if the legal costs incurred appear disproportionate to the issues involved.
The paying party’s financial position may also be relevant, and a judge may consider whether enforcing a substantial costs order would create genuine financial hardship, particularly where children are involved.
Can legal costs be claimed before the case ends?
Family courts have the power to order one party to contribute towards the other’s ongoing legal fees before proceedings have concluded. This usually arises via a Legal Services Payment Order.
These applications are most commonly seen where there is a significant imbalance in financial resources between the parties. For example, one spouse may control most of the family wealth while the other has little access to funds and no realistic way of paying solicitors privately. The court may decide it would be unfair for one person to be unable to pursue or defend proceedings properly because of financial disadvantage.
When considering these applications, the court will look carefully at both parties’ financial circumstances, including income, available savings, borrowing capacity, and whether alternative funding options exist. These orders are not granted automatically, but they can provide important protection in cases involving unequal financial power.
How are costs orders enforced?
If the other party refuses to pay voluntarily, enforcement may become necessary, and that can create additional stress, delay, and expense.
Depending on the circumstances, enforcement options may include:
- Deductions from earnings
- Charging orders over property
- Applications aimed at securing payment from bank accounts or other assets.
In more difficult situations, enforcement hearings may be required to examine the debtor’s finances and determine what payment methods are realistic. However, enforcement is not always straightforward, and a costs order is only as useful as the paying party’s ability to satisfy it. If your former spouse has limited income, few assets, or existing debts, recovering legal costs may prove difficult in reality. This is why solicitors often encourage clients to take a pragmatic and commercial view before pursuing lengthy arguments over costs.
Costs disputes can themselves become expensive, particularly where additional hearings, witness statements, and legal arguments are required. There are cases where the amount spent arguing over costs ultimately outweighs the value of the costs being pursued. Judges are often alert to this risk and may criticise parties who become disproportionately focused on punishing one another financially rather than resolving matters constructively.