A detailed explanation of how costs are generated during divorce proceedings and how costs can be recovered, this was written by Charles who is an award winning cost draftsman.
Note: court fees correct as at 01/12/14
The term 'divorce costs' can be confusing – particularly to the person being asked to pay those costs.
However, ‘divorce costs’ / ‘costs of the divorce suit’ / ‘the petitioner’s divorce costs’ are limited to those costs incurred in the process of ending the marriage – from preparing the divorce petition to applying for the decree nisi and to obtaining the decree absolute which dissolves the marriage.
This guidance also refers to any costs order that says ‘the respondent pay the petitioner’s costs [to be assessed if not agreed] [in the sum of £x]’ where that order is made at the same time as the decree absolute.
1. Amount of costs
When the petitioner instructs a solicitor, the solicitor deals with the divorce on the petitioner's behalf. If the petitioner intends to claim their costs from the respondent, the 'chargeable events' that will incur costs are as follows:
(1) Taking instructions from the petitioner
(2) Sending a letter of advice to petitioner
(3) Preparing the divorce petition, notice of acting, certificate of reconciliation and statement of arrangements if there are children
(4) Sending the petition to respondent (if opting to use Resolution protocol)
(5) Submitting the petition to court with £410 court fee
(6) Considering acknowledgement of service from the respondent
(7) Attending the petitioner to complete special procedure documentation (preparing documents to send to petitioner)
(8) Sending the special procedure documentation to court
(9) Consider the certificate of entitlement to decree
(10) Sending the certificate of entitlement to client and advising
(11) Sending letter to the other side re: amount of costs
(12) Consider the Decree Nisi /Section 41 certificate
(13) Sending the Decree Nisi to client and advising
(14) Prepare the application for Decree Absolute
(15) Send the application to court
(16) Consider the Decree Absolute
(17) Sending the Decree Absolute to client and advising
2. Increase in average costs
Chargeable events increase as the matter becomes more complex. Typical examples of additional complexities are below:
(a) The respondent defends the petition or indicates that s/he wishes to defend
(b) The respondent issues a cross petition
(c) The particulars of the petition are not agreed and have to be rewritten
(d) The respondent fails to acknowledgement receipt of the petition – the petitioner then has to incur costs of a bailiff or process server to personally serve the petition and costs of his/her solicitor in making these arrangements
There are few hard and fast rules relating to when the court will make a costs order and for what amount – this can vary from court to court and from judge to judge. However, there are some accepted principles:
* A divorce based upon adultery, unreasonable behaviour or desertion usually ends with the respondent paying the petitioner's costs as well as their own. Sometimes the parties agree a fixed contribution to costs which benefits both parties.
* A divorce based upon 2 years separation by consent is often resolved by a costs order where the respondent makes a contribution equal to half of the petitioner's costs.
* A divorce based upon 5 years separation is resolved without a costs order. There is no variation to this.
There are variations on the above depending upon the position of each party. For instance, if the petitioner was desperate to be remarried, getting a divorce would be of paramount importance. In order to obtain the consent of the respondent to issue a 2 years separation petition, the petitioner may agree to forego their claim for costs to ensure the divorce is not delayed.
3. Litigants in person
When a petitioner conducts the divorce without the assistance of a solicitor the costs incurred with be dramatically reduced. More often than not the costs are limited to the court fees of £340 to issue the petition and £45 to issue the decree absolute. There may be other items that are properly claimable such as the fee for a copy of the marriage certificate (around £9) the oath fee to swear the special procedure affidavit (around £5) and the fee for personal service (around £100).
Technically it is permissible for a litigant in person to claim an hourly rate for dealing with the work in the same way that a solicitor would but this is limited to £18.00 per hour (from 01.10.11) and to an overall amount not exceeding two-thirds of that which would be claimed by a solicitor carrying out the same task.
The last paragraph may not to make much sense but as litigant in person costs in family proceedings are rarely, if ever, awarded there is no real guidance. My advice would be to limit your claim to 5 hours of work and prepare a simple schedule of work done as follows:
(1) Time spent
01.01.11 – 54 minutes – prepare divorce petition
01.01.11 – 30 minutes – prepare statement of arrangements
04.01.11 – 18 minutes – collate documents and prepare letter to court with petition
Total time spent 7 hours 24 minutes – limited to 5 hours @ £18.00 per hour = £90.00
£410 – court fee to issue petition
Total disbursements £410
Total claimed = Time spent (£90.00) + Disbursements (£410.00) = £500.00
4. The position of the respondent
As a respondent you are regarded as the person who caused the marriage to break down irretrievably. That breakdown is reason to dissolve the marriage.
5. Defending a petition
If you do not agree that the marriage has irretrievably broken down you can defend the divorce petition. However, the petitioner's act of issuing a petition suggests that even if you (as the respondent) do not believe there was anything wrong, the petitioner believes that there is - to such an extent that the marriage should end.
6. Cross petition
Unfortunately it is common for a petitioner to end a marriage as they have moved on and wish to be with somebody else. The first indication of this can be receipt of the divorce petition.
In such circumstances the respondent may feel that it is 'unfair' to have to pay the petitioner's costs. This leads to the protestation “why should I pay? It’s not me that wants the divorce, the petitioner does!”
However, a judge will not see the case from your perspective. If you do not defend the petition you effectively agree that the marriage has broken down and that you were at fault.
This is where the 'answer and cross petition' come into play. A cross petition allows you to issue a counter-petition to set out why you think that the petitioner is actually at fault and that you should be granted a decree absolute.
7. Amount of costs to be paid
The process of divorce looks simple on paper but a lot can go wrong. Simple errors such as specifying the place where the parties were married "as it appears on the marriage certificate" can catch some people out. An amendment to the petition will incur a £90 court fee as will any subsequent amendment made at a later date.
If you intend to use a solicitor who charges £185.00 + VAT per hour, each short letter sent on your behalf will cost £22.20. Multiples of that amount will occur each time letters, telephone calls and documents are required. It gets very expensive very quickly.
Let us assume that both parties obtain assistance from their solicitor.
As a general rule a petitioner's divorce costs are on average around £1500.00 (typically between £1100.00 and £1800.00). This is the amount the respondent will be asked to pay as the worst case scenario. They themselves will incur a couple of hours of work for their solicitor – call it £450.00.
If the respondent decides to defend the petition and the matter proceeds to trial, costs of around £5,000.00 + VAT will be incurred – maybe more, maybe less. The Petitioner will incur the same amount and probably slightly more. The risk is that the person who loses the trial will usually have to pay the winner's costs. The winner is usually the petitioner.
Where there is a cross-petition this 'doubles-up' the costs as there are effectively two petitioners. Conversely there are also two respondents so that work is doubles up too. As a rough formula, the costs incurred are: 1 divorce x 2 + 25% = £3750.00 (using average figures and the rate of £185.00 + VAT per hour from above). The usual outcome is that one person withdraws their petition, the remaining petition proceeds to decree absolute and each party pay their own costs. So, each party pays around £1875.00.
8. Amount to offer in settlement
The cheapest option as a respondent, even if not at fault, is to accept the petition and pay the petitioner's costs or offer to pay a proportion of those costs. It may 'stick in your craw' but divorce is usually inevitable and delaying the divorce can impact upon unresolved issues such as those relating to children or finances.
If you are called upon to pay the petitioner's costs, offering 50% is a good starting point. If that is not accepted an offer equal to 85% of the amount being requested is a reasonable settlement. Beware, there is a difference between offering 85% and paying 85% of the costs. For example, if a party sought £1000 from you, you should offer "£850.00 in settlement of the divorce costs" rather than "85% of the amount of the divorce costs".
The divorce process costs money and somebody has to pay for it. A pragmatic view is that both parties obtain the divorce therefore both parties should contribute towards the process of dissolving the marriage regardless of who caused the marriage to break down.
In practice, if the respondent is at fault, due to adultery or unreasonable behaviour, it is reasonable for the petitioner to seek his/her costs from the respondent.
If the respondent is not at fault and does not agree with the petition, the most cost-effective resolution is to agree to pay costs although this is counter-intuitive. It might not be fair but any other course of action is likely to prolong the inevitable and increase your eventual liability.
Note: The above conclusion is based upon personal opinion and observations of divorce cases for the last 12 years in the West Midlands area.