Report recommendations for divorce and dissolution costs
The Divorce, Dissolution and Separation Act 2020 (DDSA) comes into force in April 2022.
Ahead of this, there is new analysis from the Finding Fault study, led by Professor Liz Trinder and funded by the Nuffield Foundation.
This analysis has been presented in a report published in July 2021: Emotionally charged: costs on divorce and dissolution.
It uses data relating to costs collected in 2015 to 2017 under the existing divorce law to consider the implications for the new legal framework for costs under the DDSA.
The report finds multiple problems with how the current costs regime operates in practice.
- costs not being equally accessible to all petitioners
- a decision-making process that is procedurally unfair to respondents
- exacerbation of conflict between divorcing couples
Many of these difficulties can be attributed to the fault-based premise of current practice, but removing fault may not resolve all of them.
There is evidence that whether, and how, people claim for costs can reflect moral judgements and attribution of blame between the parties, and does not always map neatly onto the five facts.
In addition, for some people, the £550 cost of the divorce petition puts extreme pressure on family finances post-separation, regardless of whether costs were claimed or awarded.
The report makes four key recommendations:
- only make costs in matrimonial cases available for litigation misconduct – the definition of ‘conduct’ should exclude conduct that occurred before proceedings and/or as a result of starting proceedings so costs may only be claimed at conditional order stage, not on application
- restrict any costs awards to compensation for additional expenses arising directly from the litigation conduct, therefore excluding the initial application (petition) fee or initial legal advice
- increase the focus on measures to prevent difficulties that lead to litigation misconduct, such as:
- freezing or reducing the issue fee of £550 to reduce its financial significance
- encouraging the voluntary sharing of the costs of the application
- making sure that information for respondents is clear, accessible and sets out precisely what steps respondents must take together with clear, but respectful, warnings about potential liability for costs for delayed or non-response
- ensuring that family justice stakeholders – lawyers, HM Courts and Tribunals Service and the judiciary – are clear about the cultural change that the DDSA introduces for costs
- monitor the operation of the costs regime to make sure it remains consistent with the policy aims of the DDSA