The general rule
Generally, in divorce proceedings, each person pays their own legal costs.
Costs include the court fee and solicitors fees for both parties (if solicitors are instructed).
Who pays the court fee?
The person who applies to the court for a divorce, known as the applicant, pays the divorce court fee.
If a joint application is made, Applicant 1 pays the fee.
Some couples agree to split the court fee between them by informal agreement (such as where there is a joint application or both parties want the divorce).
Who pays solicitors fees in divorce proceedings?
Despite prevailing opinion, it really does matter who initiates divorce proceedings.
If you are the one who is being divorced (the respondent), the court can order you to pay the legal fees of both sides. This is unjust, but it is based on the old court principles that if you can prove your case before the court, then you will also get your costs.
This may be useful for other cases and other judicial systems in the UK, but in the family courts, the result may be unfair.
If the divorce is agreed upon by both parties, it is possible to halve the legal fees between the two of you.
If your decision to divorce comes some time after you have started to live apart, you may already have recorded in a separation agreement that on divorce all fees will be shared.
Claiming costs from the other person
Either party can ask the court to make a costs order - that the other party pays all their legal costs relating to the divorce; that costs are divided equally; or that just the court fee is shared.
To do so, it is necessary to make a separate application to the court, which is why making cost orders is uncommon.
If you are the applicant, then it is usually best to agree with the respondent about paying costs before the divorce application is made to the court.
You may also be able to agree with the other person about costs at the conditional order stage.
After that, it will be up to the court to decide. The judge is likely to consider whether the costs claimed are reasonable and whether the conduct of the parties during the divorce process was civil or acrimonious.
Of course, it is also possible that the person who petitions for the divorce will not seek a court order for costs against his or her spouse.
What happens if the respondent does not agree to pay?
If the respondent does not want a divorce, they may refuse to pay for the costs. This is likely to lead to increased costs for both of you, and possibly delays.
Reaching an agreement on how costs will be shared and paid before the divorce application is sent to the court is the best way of preventing the respondent from challenging costs later.
If a court order has been made, then the respondent is under a legal obligation. Enforcement action can increase costs further.
Certain people are eligible for help with court fees. If you earn a low income or are in receipt of state benefits such as Jobseekers Allowance, Income Support, Income-related Employment, and Support Allowance and Universal credit, then you should complete Form EX160 to apply for a court fee remission.
You may also be entitled to financial help (legal aid) with your divorce costs:
- if you use it for mediation (with the aim of avoiding drawn out court battles)
- if you have experienced domestic abuse, financial abuse, violence or child abduction
- if you are at risk of homelessness
Legal aid does not make getting a divorce free. Costs may be recovered from your settlement. If, for example, you receive a share of the house you live in or a sum of money as part of your settlement, your divorce costs may be taken out of that.
Keeping divorce costs low
People are rarely financially better off after a divorce for the simple reason that it is more expensive to maintain two homes than one. It is therefore likely that you will experience a drop in your standard of living after separating. Being realistic about this and trying to reach an agreement on as many financial and property issues as possible greatly reduces costs and stress.
Where there are children, their needs should be the starting point in deciding where everybody is going to live. Managing joint finances when you split up - making sure you know exactly what the assets, debts, income and outgoing of everybody are - is necessary in order to try and find a solution.
The cost of divorce process includes the divorce itself, the financial settlement (the agreement of how assets are divided and whether maintenance payments should be paid by one to the other) and childrens' arrangements.
If you can, avoid court
Court costs are relatively small.
The bigger reason to avoid court is that regardless of the reason for divorce, regardless of the strength of your argument, court proceedings expensive and stressful. The outcome for you will always be uncertain.
Judges are humans too. Sometimes we forget that. Whether or not your injustice or needs seem clear to you, the decision a judge makes might be made on a bad day for him or her.
In every aspect of family law - divorce, children and money - the court has far greater discretion than in most other areas of law. You might find that something you think you had already agreed on before the hearing is varied by the judge.
On top of the judgment, there may be the costs of using your solicitors to pay as well. So, if ever possible, settle your disagreements out of court.
Do you need a solicitor at all?
The largest cost in divorce proceedings is usually your solicitor fees. Ask yourself whether you really need one.
If the divorce is undefended - that is, you both agree - there is little point engaging law firms as long as you agree on the division of your finances too.
It is quite possible to do your own divorce without any legal assistance.
Using a solicitor does not make the divorce any more legal.
You can manage the entire process on your own with relative ease. Free forms and basic guidance notes are available from any divorce county court and court staff will help you with the procedure.
Further, you can also purchase legal advice and support online too.
Arrangements for children must be approved by the court, but the procedure is simple.
Some situations in which you might be able to forego the services of a divorce solicitor are:
- if you and your partner agree on the divorce and on the division of property
- if both of you do not have substantial assets
- if you are not challenging child maintenance
- if your children are of legal age and not minors
However, if you still need financial assistance from your partner after the divorce, it may be better to get the help of a solicitor to take care of the monthly payments and help make the payments binding.
If you do use a solicitor
You can save costs by doing much of the preparation work yourselves.
Use your solicitor for advice on legal matters, not as a counsellor. They may be sympathetic to your case, but using them as an emotional crutch is far more expensive than seeing a therapist.
Don't use them to argue over unnecessary issues with your ex. Preparing solicitors letters usually come at a higher cost than the value of the thing they might resolve.
Can you deduct legal fees for divorce from tax?
Except for very specific circumstances, in England and Wales divorce fees are not tax deductible, whether from income tax or any other.
Next, you might like to read about maintenance payments from one of you to the other.
We also provide a consent order for financial settlement kit that includes detailed guidance notes as well as all the forms, examples and information you need to complete your own consent order.
Your will does not become void on divorce or separation (read about the effect of marriage and divorce on your will). If you made a will after you married that leaves your estate to your wife or husband, then you will probably want to make a new one.
We provide a number of free will templates that allow you to make a new will.