Part 28 of the Family Procedure Rules 2010 (FPR) govern cost rules in divorce and family proceedings. 

Section 28.1 provides that the court may at any time make such order as to costs as it thinks just. In financial remedy proceedings there is a ‘no order as to costs rule’ (FPR 28.3(5)), which means the court will not make a cost order unless appropriate to do so taking account of the conduct of one of the parties (whether before or during the proceedings). 

The Civil Procedure Rules (CPR) will apply if an unmarried couple apply for declaratory relief under the Trusts of Land and Appointment of Trustees Act 1996. The usual order in civil cases is that costs orders follow the event, with the unsuccessful party paying the costs of the successful party (CPR 44.2(2)). 

Cost rules in divorce, dissolution and judicial separation applications

Joint applicants to a divorce, dissolution or judicial separation can agree between them responsibility for the court fee and any legal costs. Joint applicants cannot however apply to the court for costs against the other joint applicant unless they become a sole applicant. This may occur if a joint applicant fails to co-operate in progressing the application. Cost applications are however generally discouraged. The applicant will need to show conduct by the respondent that justifies the making of a cost order. 

Cost rules in financial remedy proceedings

The ‘no order as to costs’ rule will apply in financial remedy proceedings, subject to the court being required to ‘have regard’ to conduct issues (FPR 28.3(7)). Financial remedy proceedings are defined narrowly, and a distinction is made between proceedings that are made for a final financial order (which most applications will be) and those which are ‘in connection with’ proceedings for a financial order.

Examples of proceedings which are not financial remedy proceedings for the purposes of the FPR 28.3 and therefore are not subject to the ‘no order as to costs’ rule are interim applications, avoidance of dispositions, variation of maintenance agreements, maintenance pending suit, legal services orders, appeals, enforcement and applications for financial provision for a child under Schedule 1 of the Children Act 1989. In these cases the court has ‘a clean sheet’ as to what order to make. The starting point will be that ‘costs follow the event’ which means the unsuccessful party will be ordered to pay the costs of the successful party. 

Cost rules in Children and Family Law Act proceedings

The ‘no order’ starting point does not apply to Children Act and Family Law Act proceedings. They are governed by the court’s general discretion in FPR 28.1 to make such order as the court thinks just. Cost orders in children proceedings are generally rare, however the court may take into account ‘conduct’ of the parties. 

Cost rules in divorce and family proceedings – conclusion.

Having to fund legal fees can be a worry and add to the pressure at an already stressful time. Accessing funds for legal fees may also be difficult if assets are tied up, or income streams are for whatever reason inaccessible. For a no-obligation initial discussion contact us to see how we can help.

Written by Caroline Watson

October 9, 2022

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