Will my ex- have to pay my legal costs?

Many people are aware of the principle in the Civil Courts that the unsuccessful party may be ordered to pay towards their opponent’s legal costs. This principle generally does not apply in the Family Court. In the Family Courts, the starting point in most cases is that the Court will not order one party to pay the other’s legal costs. 

However, the Family Court has wide discretion to make an order that one party should pay the other’s costs at any stage in proceedings if a party’s conduct makes a Costs Order appropriate. In his judgment in the 2023 case of HO v TL (Costs) [2023] EWFC 216, Judge, Peel J, warned that the Court are increasingly willing to make Costs Orders. 

This shift comes as the Family Court is strongly emphasising the importance of attempting Non-Court Dispute Resolution, such as mediation, rather than going to Court. Avoiding Court proceedings saves unnecessary costs and acrimony for the parties, as well as reducing the pressures on the Court system.

Recently, there have also been shifts in how the Family Court is approaching parties’ conduct in financial remedy cases on divorce. There is a suggestion that this shift may lead to Costs Orders being made more frequently in cases where one party’s conduct has been unreasonable. 

It is also important to note that the starting point that the Court will not order one party to pay the other’s costs does not apply in all cases in the Family Court. For example, in many Court proceedings concerning maintenance payments, this principle does not apply. 

Overall, in most cases, you should not expect the other party to have to pay any of your legal costs. However, this is an important point to consider in any Family Court proceedings.

For more information, please contact Rebecca Curran, Trainee CILEX Lawyer in the Family Law Department at SE-Solicitors at rcurran@se-solicitors.co.uk.