What if I want my Spouse to pay?
A petitioner can complete the divorce petition to ask that the Court makes an order that the respondent pays the costs (and also co-respondent if it is an adultery petition and the co-respondent is named), however the Court is unlikely to make such an order where the petition is issued on the basis of five years' separation.
Where the parties are on reasonable terms and both want the divorce, it is not uncommon for agreement to be reached with regards to sharing the costs before one of them consults solicitors. In these cases the petition can be completed to show that a costs order will be sought but the amount will be limited to the sum the other party has agreed to pay, for example the Court fee of £550, or 50% of the solicitors fees.
If the amount of the contribution has not been agreed in advance then negotiations with regards to who pays what can continue during the proceedings. These would normally begin once the respondent has received a copy of the proposed divorce petition under the protocol. If agreement is reached at that stage then the costs part of the petition can be completed to reflect that agreement. The petitioner can also state that they will only claim costs if the respondent fails to return the Acknowledgement on time or otherwise delays the proceedings unnecessarily. If no agreement is reached but the respondent wishes to make it clear how much he/she is prepared to contribute then the relevant section in the Acknowledgement of Service should be completed to state that amount. The petitioner can then decide whether to accept this sum or continue to seek more.
If the petitioner has stated in the petition that a costs order will be sought, but is then able to come to agreement with the respondent as to how costs will be divided (or even paid in full by the respondent), and these costs are paid before the petitioner applies for the first decree of divorce (decree nisi), then the question on the Statement in Support of Petition, which is part of the documentation required to apply for decree nisi, which asks whether the petitioner wishes to add or amend anything, should be completed to state that a costs order is no longer required.
The procedure becomes more involved when a respondent refuses to pay anything. In these cases either the respondent has answered the costs question on the Acknowledgement of Service to confirm that he/she objects to paying costs and may give a reason for objecting or has failed to acknowledge the petition. It is not enough however to simply state on the Acknowledgement that payment of costs is not agreed. The respondent must also give notice to the Court and to the petitioner of his/her intention to attend the decree nisi hearing to raise their arguments before the District Judge no less than 14 days before the decree nisi date. If sufficient notice is not given the Judge will not even hear from the respondent. If proper notice has been given, and the respondent attends Court, the Judge will hear from both petitioner and respondent and then decide whether to make a costs order and, if so, in what amount. The general position however is that ‘costs follow the event’ and if the Court is satisfied that it was the Respondent’s adultery or behaviour that led to the breakdown of the marriage, then an order will be made.
The Court will send out the costs order with the decree nisi. The order will have the wording that the respondent pays the costs of the petitioner ‘to be assessed if not agreed’. Please see separate Q&A relating to what happens when the respondent fails to pay.
Two things to note :-
(a) a petitioner does not have to include a claim for costs on the petition, particularly if by doing so they are likely to inflame the situation and possibly put themselves at risk of harm. Some petitioners may be of the opinion that it is a complete waste of time and energy claiming costs from the respondent as he/she will never pay and are willing to cover all the costs themselves.
(b) If a petitioner is represented then he/she will remain responsible for solicitors costs and the Court fee until such time as the respondent pays at which stage the solicitor will refund monies to the client.