The change to non-fault divorce next year should be accompanied by a new costs regime for divorce cases, a report has argued.
The Divorce, Dissolution and Separation Act 2020 comes into force on 6 April 2022 and will remove the requirement to use one of the five ‘facts’ – adultery, behaviour, desertion, two-year separation with the respondent’s consent or a five-year separation – to prove to the court that the marriage or civil partnership has broken down irretrievably.
According to a newly published report from the Nuffield Foundation, costs have become a talking point around implementation. Currently, it is usual that petitioners asking for the respondent to pay the costs in a divorce granted on adultery, behaviour or desertion will be successful, but costs orders are less common in separation-based divorces.
“The removal of the five facts therefore raises questions about the appropriate basis upon which the court can make decisions about costs in future or, indeed, whether it should still be appropriate for costs to be ordered,” the report said.
It used the costs data collected, but not previously analysed, for the Finding Fault study about existing divorce law, and said this showed “multiple problems with how the current costs regime operated in practice”.
Costs were not equally accessible to all petitioners – only a fifth of petitioners claimed costs, but were almost guaranteed to be awarded costs if they did. Only 3% of unrepresented petitioners got costs, compared to 34% of represented petitioners, while 90% of costs awards were for fault divorces.
The report said decisions about whether a petitioner was entitled to a costs order were often made by court legal advisors and endorsed by the judge when the divorce or dissolution order was made.
“The decision-making process appeared both highly formulaic and procedurally unfair to respondents. Costs were awarded in fault cases regardless of the respondents’ objections.
“The justification was that respondents could ask for an oral hearing to contest the decision. However, that remedy was inaccessible to litigants in person or risked exacerbating conflict for represented parties.”
There was also evidence that whether and how a petitioner claimed costs “could reflect moral judgements and attribution of blame between the parties”.
The new law meant the Family Procedure Rules were likely to assume a much greater significance in relation to costs, Nuffield said.
It recommended that costs in matrimonial cases should only be available on the basis of litigation misconduct and that ‘conduct’ be tightly defined to exclude conduct prior to proceedings and/or as a consequence of proceedings.
“Costs may therefore only be claimed at conditional order stage, not on application.”
Further, any costs awards should be restricted to compensation for additional expenses arising directly from the litigation conduct, therefore excluding the initial application (petition) fee or initial legal advice.
The report urged “great focus” on measures to prevent difficulties giving rise to litigation misconduct, such as encouraging the voluntary sharing of the costs of the divorce application (there will be a £550 court fee under the Act), and setting out “precisely” what steps respondents must take “together with clear, but respectful, warnings about potential liability for costs for delayed or non-response”.
Lawyers, judges and the courts service should also be “clear about the cultural change” that the 2020 Act introduced for costs, it concluded.