In the event that costs are going to be an issue at decree nisi, you need to think very carefully about whether or not you wish to make a claim for costs at the outset of your case in any event. If you do not claim costs at the outset, you cannot change your mind later.
In simple terms, the practicality of costs means that where there is a “naughty” party, costs will follow the event, i.e. the petitioner (the person who is starting the divorce) will be entitled to their divorce costs.
There are five Facts (grounds) for a divorce and different practical considerations apply:
a) The usual practical scenario therefore is where there is a divorce based on the respondent’s adultery or behaviour, we usually claim costs.
b) It is often more a question of judgment as to whether or not you claim costs where there has been a desertion or a five year separation without consent.
c) The reality of the situation is where there is a two year separation by consent, you are unlikely to get your costs as the respondent will, undoubtedly, simply say that they will not sign the divorce documentation until such time as you withdraw your claim for costs in any event.
Therefore, in looking at the first option i.e. adultery and behaviour, is it worth claiming costs?
In simple terms the answer is yes insofar as the costs incurred by you, if you have instructed a solicitor, can be recovered from the respondent as the recalcitrant party. If you have not instructed a solicitor then the costs will be in the region of just less than £400 for the Court fees known as disbursements.
However, in claiming costs, you need to take into account the emotional impact of the respondent feeling aggrieved at having to pay not only their own costs (which, in reality, will be nil if they have not instructed a solicitor but they do not often FEEL that to be the case) and pay your £400 costs, if you have not instructed a solicitor.
Sometimes therefore it is strategically more advantageous simply not to make a claim for costs before you even start the proceedings in your case so as to reduce any acrimony between the parties and ensure that the respondent is more likely to return the Acknowledgement of Service form in the first place and save you a whole barrel load of trouble.
This can be particularly more sensitive where there are children in the family as that may lead to all sorts of other repercussions.
The answer therefore is take great care in deciding whether or not to claim costs and there is no right answer and each individual set of circumstances will bring their own particular characteristics to that divorce and the claim for costs needs to be considered in the light of those characteristics.
Suffice to say at this stage that if you did claim costs in your prayer, i.e. the divorce application (petition) then at the decree nisi hearing you can then seek your costs. The usual way of dealing with your claim for costs is either:
(a) Doing nothing and assuming that the Court will simply order costs in your favour in any event; or
(b) That you write a letter to the Court explaining your reasons for your desire to claim all your divorce costs from the respondent; or
(c) That you turn up to Court to explain your position orally.
The third option, I believe, is the least practical option unless you know there are going to be particular difficulties as there may be some considerable waiting involved at Court. The preferred option, I have found in practical terms, is often writing a letter to the Court well in advance to explain your reasons for claiming costs.
If the respondent however wishes to object to paying costs, they need to write to the Court and also provide you with seven days notice of that letter having been sent to the Court to comply with the Rules so that you have then sufficient time in which to respond to that letter that they may have written.
Although it is not always the case, you ought to be able to at least legally assume that if no letter has been received by you from the respondent seven days before the hearing, that they have not put the letter before the Judge for the Judge’s consideration in any event. That prevents you from being ambushed.
Usually, again taking a practical approach to this as opposed to a legalistic one, it would make sense to write a sensible succinct letter to the Court to explain why you would wish to obtain costs just in case you are accidentally ambushed by the respondent by them sending a letter to the Court at the eleventh hour and the Judge failing to spot the lateness of that letter being filed.
In all cases, you should ensure that the letter is not long, rambling and an emotive statement of affairs but clear, concise and to the point. The poor Judges only have a very limited time in which to deal with these matters and it is important that you get your point across by a sensibly worded letter.
The information provided in this article is not intended to constitute legal advice and each relationship breakdown requires careful consideration in our view by a fully qualified Solicitor before decisions are made and before you embark on a certain course of action.
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