When you are debating whether to take your ex-partner to court to resolve a family law dispute your legal costs are an important factor in whether you decide to start court proceedings or in how you respond to an application made against you.
As a family law solicitor, I represent parents and separating couples in divorce, children, financial settlements, and property disputes as well as injunction proceedings. I believe it is important that you understand the broad principles of cost orders so you can make informed decisions on whether to apply to a court for a family law order or use an alternative means of reaching an agreement, such as solicitor negotiations. That’s because, whether we like it or not, costs are an important consideration for all people engaged in family law disputes.
London Family and Children Law Solicitors
If you need representation in family law court proceedings then call family law solicitor Angelique Holm on 0203 488 8620 or email info@hopeholm.co.uk or contact me here.
Will I get a cost order?
‘Will I get a cost order?’ is a good question but often one that even the most experienced of family law solicitors can’t answer when you first instruct them because until they know lots more about your case, the type of family law application you are making, the allegations and counter-allegations, the evidence for and against, and the judge’s perception of the evidence, it is difficult to say with any accuracy if the court will make a costs order requiring your ex-partner or former spouse is ordered to pay all your legal costs or a proportion of them or the costs of a specific hearing.
What a family law solicitor can tell you from the conclusion of your first meeting is the likely range of court applications you could make, or respond to, and provide a rough timetable from application to final hearing so you know, in broad terms, how much a court case may cost, how long it may take and your funding options.
All family law solicitors will tell you that you should never start or respond to a family law application assuming that the court will order that your ex-partner or former spouse should pay all or a percentage of your legal costs. That’s because there are no guarantees as in family law proceedings the judge has wide discretion over whether to make a cost order and the extent of the cost order.
Costs orders – the hard facts
Cost orders can’t normally be relied on as a means to pay for your legal fees for your family law case as you will not know if you will get a cost order for a particular hearing, or for all or a proportion of the costs of the proceedings, until the end of the court case and you are committed to paying your family lawyer, whether you win or lose.
In family law proceedings costs don’t ‘follow the event’ so the ‘winner’ does not get an automatic cost order. That’s because in many family cases, there is no clear winner or loser. For example, you may have applied for a child arrangement order so you could see your children, and the judge may have accepted some of the points made by you but not all of them whilst still awarding you contact. Even if the judge made the cost order in your favour, would your ex-partner have the ability to pay the costs without it impacting financially on your child, and will a cost order make family tensions at contact collection any easier?
These points aren’t being defeatist but an honest assessment so you go into family court proceedings with eyes open on the prospects of getting a costs order.
As a family law solicitor, I believe it is best to be upfront about legal costs and to give strong warnings about the difficulties of securing cost orders despite my often thinking that ‘if there was any justice’ a cost order would have been made in circumstances where one party to a family law dispute has tried to act reasonably, negotiate, only argue over salient points and done all they could do to reach an agreement despite the wholly oppositional stance of their ex-partner. Examples of this type of situation include child arrangement order applications involving parental alienation or divorce financial settlement proceedings involving elusive and delayed financial disclosure.
Legal service orders
There is one type of cost order that is clearer cut, the legal services order. Instead of asking the judge to order that your ex-partner pays your costs at the end of the family law application you apply for a legal services order at the beginning of the case.
The order is a bit like add-on spousal maintenance as it gives an economically weaker party the chance to fund court proceedings rather than feel they have no choice other than to borrow money from family or friends to pay legal fees, take out a bank loan, represent themselves or capitulate to their ex-partner’s legal demands.
The rules and eligibility criteria for a legal services order are strict and if your ex-partner is paying your legal fees on top of their own this will reduce the value of the family assets available for distribution between the two of you.
Although family law solicitors aren’t accountants we do need to think like them to assess whether an application for a legal services order or a cost order is likely to be in your interests and if the costs of the costs application or the costs of the family law proceedings are justified. Sometimes they are. For example, if you are fighting to see your children or trying to stop your children from being taken overseas by the other parent or if you are arguing that you get to stay in the family home or receive a share of your spouse’s final salary pension. In other scenarios, when you are arguing over £5,000 worth of assets or household contents or you can’t agree on whether the children should be returned after contact at 5 pm or your preferred 6 pm time, the costs may not be justified depending on the size of your purse and your priorities.
Avoiding costs orders
One way to avoid costs orders is to avoid court. That may be obvious but it is easy to get sucked into court litigation. As an experienced family law solicitor my job isn’t to march you to court to apply for an order or to respond to a family law application but instead to give you an honest appraisal of the strengths and weaknesses of your position and your legal options. That upfront advice can often mean you can reach a negotiated agreement through solicitor negotiations or by my supporting you with legal advice during family mediation.
Conduct and cost orders
Whilst costs orders are at the discretion of the judge the court takes conduct into account when deciding whether or not to make a costs order. The CPR says conduct includes:
- Conduct before and during the court proceedings including whether you followed the guidance contained in Practice Directions before issuing a court application
- Whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue and how it was done
- Whether a claimant who has succeeded in the claim, in whole or in part, exaggerated the claim
You may be more likely to get a costs order for a discrete hearing, such as a fact-finding hearing in child arrangement order proceedings to determine if the respondent did assault the applicant and child during the relationship. A respondent could be ordered to pay costs if there is compelling evidence such as medical and other independent reports and the judge concludes that the fact-finding hearing would not have been necessary but for the respondent’s conduct and intransigence.
London Family and Children Law Solicitors
For advice on fact-finding hearings and family law disputes call family law solicitor Angelique Holm on 0203 488 8620 or email info@hopeholm.co.uk or contact me here.