When the no-fault divorce legislation is implemented next April, it will mean that divorcing couples can now jointly apply to divorce, removing one of the elements of divorce that has been shown to provoke, or exacerbate, conflict between separating couples.

However, this does not remove the issue of costs, namely the £593 court fee for the divorce petition and legal fees, which can be another cause of conflict between divorcing spouses.

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. 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 £593 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 no-fault divorce legislation introduces for costs.

We know that the cost of legal advice is a major issue for divorcing couples. By fixing fees we give certainty over the total cost, enabling a couple to properly budget for divorce and apportion cost between them. We very much welcome this report and encourage others to read it.

Author Name: Editor

Published content by The Divorce Surgery Editorial Team.

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