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Beware The Costs Order!

July 1, 2021 | Silver Law

If the divorce costs outweigh the assets and the litigation and spending goes on…beware the costs order!

Once upon a time there was a clear no order as to costs rule, unless in exceptional cases, however, there has now been a sea change. In recent times, things have changed and now you need to be aware of all the extra costs incurred if you continue to litigate.

That is not to say that you cannot bring a case to court with the proper representation and go through the necessary procedural steps governed by the court.

In many cases, the shared assets will have grown since first getting married. Many couples become wealthy over time, own multiple homes, own businesses and have large pensions and so on. It is not until all the assets are valued and placed on a spreadsheet that the couple really understand what they are arguing over.

But dear reader, simple mathematics proves that one pot of resources does not go very far when there are two parties with their hands out to divide the money into. Especially when factors such as lifestyle demands and the worry of surviving on one’s own come into play.

Judges are becoming more concerned when the asset pool is modest, or the legal argument does not warrant the high costs and often take the view that ‘enough is enough’. However, by that stage, litigation costs have often started to spiral out of control and are overtaking the available money.

So, what is the answer? I hear you cry.

Compromise and handling the client’s expectations are key. However, a family solicitor/barrister can only advise so much and ultimately, it is up to the client to take responsibility and consider and accept a compromise themselves.

Why has this happened?

Arguments begin between the parties and battle lines are drawn and before you know it, you are in court and applications are being made, some without merit. The courts are over-burdened with backlogs due to the pandemic, as well as over-running cases and adjournments. In addition to that, don’t forget that judges, court staff and legal teams all have their own personal commitments, holidays and sick leave to contend with too.

The writer has, in cases, waited over 8 months for a hearing and with the delays, which are no one’s fault, the judges want to see the parties eye sighted on settlement and not battle. It is quite obvious that when there is nothing in the pot to divide, no one is going to give you the money you have spent back.

So, hear the message loud and clear: if the costs are overtaking the assets, expect a warning by the judge to settle the matter. If either party’s behaviour does not accommodate the Judge’s request to settle, the judge will decide who the guilty party(s) is and give them a costs order for wasting money and time. That equates to even more money having to be paid out from the ever-depleting asset pot. When a judge has given this indication, the party/parties will have to take responsibility for their own actions.

Please take serious note. Listen to your solicitor and barrister and listen even more closely to the judge. Quoting what a friend has told you will make no difference and sadly, very few friends will pick up the bill at the end!

Think of the expense that litigation brings. Your solicitor or barrister’s costs will have mounted up during that morning/afternoon in court, not to mention the court hearing itself. To walk away with those extra costs on top will not be a welcome addition. So please think twice before setting your mind up on litigation and taking an entrenched view; it may be very costly.

This article is mainly focused on financial matters regarding divorce but there are also considerations with regards to some Children Act matters.

Credit due to: Fleur Claoue de Gohr at familylaw.co.uk, ‘Costs orders – litigate at your peril’ article (June 21)

Author Dean Vickery brings with him a wealth of experience in Family Law, providing advocacy services .

The areas Dean covers include divorce and civil partnership dissolution, resolution of financial disputes in divorce, injunctions and harassment and he has been involved in very contentious work both in divorce and Children Act matters


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