Emotionally charged: costs on divorce and dissolution

The implementation of the Divorce, Dissolution and Separation Act 2020 (DDSA) will remove the elements of divorce that have been shown to provoke, or exacerbate, conflict between separating couples. While this is welcome, it raises questions about payment of the cost of the divorce process, including the £550 court (petition) fee and any legal fees.

New analysis from the Finding Fault study, led by Professor Liz Trinder and funded by the Nuffield Foundation uses data relating to costs collected in 2015-2017 under the existing divorce law to consider the implications for the new legal framework for costs when the DDSA comes into force in April 2022. This analysis is presented in a report published today, Emotionally charged: costs on divorce and dissolution.

The report identifies multiple problems with how the current costs regime operates in practice. These include costs not being equally accessible to all petitioners, a decision-making process that is procedurally unfair to respondents, and exacerbation of conflict between divorcing couples.

Many of these difficulties can be attributed to the fault-based premise of current practice, but removing fault may not resolve all of them. There is evidence that whether and how people claim for costs can reflect moral judgements and attribution of blame between the parties and does not always map neatly onto the five facts. In addition, for some people, the £550 cost of the divorce petition puts extreme pressure on family finances post-separation, regardless of whether costs were claimed or awarded.

In light of this, the report makes a number of recommendations:

• Costs in matrimonial cases should only be available on the basis of litigation misconduct and ‘conduct’ should be tightly defined to exclude conduct prior to proceedings and/or as a consequence of proceedings. Costs may therefore only be claimed at conditional order stage, not on application.
• Any costs awards are restricted to compensation for additional expenses arising directly from the litigation conduct, therefore excluding the initial application (petition) fee or initial legal advice.
• There should be an increased focus on measures to prevent difficulties giving rise to litigation misconduct. Those measures could include: freezing or reducing the issue fee of £550 so that its financial significance is reduced; encouraging the voluntary sharing of the costs of the application; ensuring that information for respondents is clear and accessible, sets out precisely what steps respondents must take together with clear, but respectful, warnings about potential liability for costs for delayed or non-response; and ensuring that family justice stakeholders – lawyers, HMCTS and the judiciary – are clear about the cultural change that the DDSA introduces for costs.
• The operation of the costs regime should be monitored to ensure it remains consistent with the policy aims of the DDSA.