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Divorce and Separation Costs

A Divorce

As with all disputes, the quicker it is settled, the lower are the costs.

Divorce costs fall into two parts; the court fees and your solicitor's bills.

At the moment, the fee for issuing a petition in the County Court is £550.00. The cheque is made payable to Her Majesty's Courts and Tribunal Service, or HMCTS.

If you are eligible for public funding (what we used to call Legal Aid) you can apply to be exempt from these fees.

It is possible to deal with your divorce proceedings yourself if you feel you want to. However, we would strongly advise you to take advice from a specialist to make sure you are clear about the process and the risks which could arise. For example, if you are the Respondent, and you receive a petition issued by your wife or husband, you need to check whether the Petitioner has included a request that the Judge should order you to pay all the costs. You may not feel that it is appropriate that you should, so this point needs to be checked.

Another risk you should consider is that, if you are the Petitioner, you might find yourself in difficulty when you try and sort out the financial relationship between the two of you. This can be very tricky, and expensive too. You really should seek advice.

But what you want to know is the bottom line. It isn't possible to give you a figure cast in stone, because it all depends on how complicated the divorce becomes. But, if the procedure goes smoothly, the Respondent acknowledges the petition, and doesn't defend it, we would expect the total costs to finish at around £1,200, including the court fees we discussed above and VAT.

If the Respondent decides to defend the case it becomes a disputed action, and, frankly, the sky's the limit. The two parties can argue at great length about why the marriage has broken down. Both can stand on their principles and refuse to allow the other's arguments to proceed unchallenged. But principles are expensive. It is vital that both parties think very carefully before squandering the family assets on legal arguments. And that's what it is - family assets. Whichever has to pay the costs, it comes out of the family total and there is less to be distributed between you. Fortunately it is very rare for a divorce case to be defended.

The Children

If it becomes necessary to seek the help of the court to sort out arrangements for where the children should live, and how often they should see their other parent, there will, of course, be costs to be considered.

Because there is absolutely no way of knowing how long it will take to find a solution on this particular subject, it is similarly impossible to give you a figure. As a rule of thumb, we would expect each hearing at court to cost between £500 and £700, depending on how long the hearing is and how much preparation is necessary for it. If the matter is held in a court some distance away, there will also be the time and expense of travelling.

This is a subject which can be extremely difficult, as well as emotional and painful. But the same basic rule applies as with divorce - the longer the two parents go on arguing about it, the more it costs.

It is unlikely that you will persuade the court to make an order for costs against the other parent. In cases about the children, the court will do all it can to help you both to find a way forward. The court very rarely penalises one or other of you by making you pay the other side's costs, unless you have been unreasonable in the way you have dealt with the case.

Finances

A Finance Order covers the financial aspects of your divorce including the house, the car, the savings, the pensions, the bank accounts, the contents of the house, the debts, the income, the outgoings, etc...

You have a financial relationship with your ex-'other half', and you will need to sort it out. The divorce procedure doesn't do this automatically.

It will come as no surprise to learn that the costs of gaining a Finance Order depend entirely on how complicated your financial picture is, and how difficult it will be to divide it between you both and enable you to go your separate ways.

To give you some idea of the costs involved, if you and the other side can reach an agreement fairly easily, with, say, only a couple of details to clarify, we could document your agreement for you for around £300-£400.

But if it is necessary to seek the assistance of the court in finding the fair answer, your costs will inevitably be far more. Around £500-£700 per visit to court, is a starting point, and a great deal of preparation in disclosing financial details to the other side and checking theirs. You can expect a financial action in court to cost at least £1500, if you settle it during the course of the process. If it proves impossible to settle it, and you have to ask the judge to hear the case and decide for you, your costs will be several thousand pounds.

Separation Agreements

If you are separating in an un-married relationship, you would be well-advised to document your agreement so as to avoid arguments about the financial details in the future.

As with the finances in divorce, the costs will depend on how much work there is to do. If you have reached an agreement covering all the financial aspects of your relationship, it is a fairly simple matter to document it for you. We would expect the cost of preparing that document for you to be in the region of £150 - £200.

On the other hand, if there are aspects of the proposed deal that you are not entirely sure about, you should seek legal advice as to your situation and the possible effects of the deal proposed. The costs of negotiating the details of an agreement with your erstwhile partner will depend on the complexity of the situation and what each party sees as a fair deal. Human nature being what it is, you could argue for weeks, or months, or even years, about your finances, your house, your businesses, your investments, and so on, and there really is no limit to what you can spend on the case.

On average, a comparatively straightforward separation agreement in an unmarried situation would probably cost in the region of £2,500. Of course, an average would be calculated using all examples, from the really low to the extremely high. It is essentially up to the parties involved as to how far they want to take their disputes.

Domestic Violence

When a person finds that they have to apply to the court because of domestic violence, it is usual to ask the court to make an order that the perpetrator should pay the costs.

The principle involved here is that it would not have been necessary to incur legal costs if the perpetrator had not done the things alleged. A victim should not be in that position, and therefore should not have to pay large amounts in legal costs to sort it out.

Matters in this area are usually dealt with quickly, because it is often urgent, and cannot be delayed for safety reasons. Your legal costs will be approximately £500-£700 for each time you have to attend the court, including preparation of the various documents required to bring the matter before the Judge. If the Judge is satisfied that your allegations are true, you will probably be given an order that the other side should pay your legal costs. (See the next section about how you can then obtain payment.)

Costs Orders against the other side

In contentious matters in court, it is usual for the successful party to ask the court to make an order that the unsuccessful party should pay all the legal costs for both sides.

In Family Law matters it is not always appropriate to pursue this line of argument.

1. Children Matters

For example, in disputes about where the children should live, and how often they should see the other parent, it would be rare to obtain a costs order. This is because nobody really 'wins' or 'loses'. The court process is there in this situation to help the parents to sort out a situation which they have not been able to resolve themselves.

2. Finances

Similarly, in a financial action it would not often be appropriate to award costs to either side, because it has been necessary to use the proceedings to resolve a situation that the parties simply see differently.

3. Exceptions

Exceptions to both of the examples above would arise if one or other of the parties was being deliberately obstructive, delaying matters, refusing to disclose information, and so on. If the court feels that you have not dealt reasonably with the matter, you could be penalised by being ordered to pay the other side's costs.

4. The Principle

Again, the principle is fairly simple. If the Court feels that the behaviour of one party in dealing with the case has not been reasonable, and has caused the other to incur unnecessary legal costs, the Court is likely to make an order that the unreasonable party must pay both sides' costs.

The Divorce

In the divorce itself, unless you are using the fourth fact, (separation for a period over 2 years, with the consent of the other side,) as Petitioner you would usually include a request for a costs order against the other side. The difficulty with the divorce is that the court does not usually hear the other side of the story. A petition setting out the reasons for the breakdown, and blaming the Respondent in one way or another, is only the Petitioner's version. There may be far more to the story than that, but the Respondent doesn't feel that it is worth spending legal costs arguing about it. The Respondent may take a philosophical approach and allow the petition to proceed, just to get the job done.

The Court is well aware that the petition is a one-sided story, and will consider representations from the Respondent that there should not be an order for costs made. This detail can be argued in solicitors' correspondence before the case proceeds, or in court before the Judge when the Decree Nisi is pronounced. If the Petition asks for an order for costs, and the Respondent doesn't raise any objections, the Court will probably make the order that the Respondent should pay.

Enforcing Costs Orders

If the court makes an order for costs against the other side, this gives you the right to obtain payment from the other side to reimburse you for all or part of the money you have spent on the action.

There are two points you must remember:

1. A costs order does not mean that you do not have to pay your solicitor's bills. You have a contract with your solicitor. Your solicitor has no contract with the other side which would enable him or her to enforce the costs order and obtain payment.

2. The costs order is yours. There are various steps you can take to enforce it if the other side does not pay willingly.

Your choices in enforcing a costs order against the other side are exactly the same as enforcing any other judgment debt. Once you know the figure which the other side owes you (assessed by the Judge if you have not been able to agree it), you can ask the court to take several ways of enforcing the order.

A) Warrant of Execution

This orders the court bailiffs to go to the other side's home and seize goods to sufficient value to pay the costs order, and the expense of the bailiffs collecting, transporting and auctioning goods.

B) Attachment of Earnings

This is an order where the other side's employer must make regular monthly or weekly payments to the court, out of the other side's wages before they are paid out.

C) Charging Order

If the other side owns property, it is possible to place a Charge on it to secure the debt for you. This is a good long-term enforcement procedure.

D) Garnishee Order

If somebody else owes the other side money, such as a bank holding deposits, you can obtain this order to make the bank pay the right amount to you directly.

We have listed these options in rising order of expense. The Warrant of Execution is usually the quickest and cheapest way of enforcing the debt. There are court fees involved in each case, on a scale available from the court office, and if you require the help of your solicitor you will be able to enforce payment of at least part of the costs of the work in enforcing the order. That old principle applies again - you would not have been put to the expense if the other side had paid as ordered.

We are always willing to discuss each individual situation. Please phone Alistair Dobson on 01858 445480, James Haworth on 0116 212 1000 or Sarah Townsend on 0116 212 1080 to arrange a free initial appointment, or visit one of our free walk-in clinics.

Please note this will be kept in strictest confidence and is required solely to ensure we do not have a conflict of interest according to SRA regulations. The party WILL NOT be contacted by Lawson-West.