When Do Divorce Solicitors Costs get Paid between the Parties?

The breakdown of a marriage is emotionally challenging and can involve financially intricate disputes. In England and Wales, divorce solicitors’ costs can vary depending on the case’s complexity, the level of cooperation between parties, and the choice of legal representation. Typical expenses include solicitor fees, court fees, expert witness fees, and counsel fees, among others, and usually parties bear their own costs of divorce proceedings.

However, if parties are on an unequal footing financially, or if there has been unreasonable behaviour during the litigation, the Court may make an order for costs to be paid between the parties.  This is either a) to allow both parties to have adequate legal representation in any financial disputes, or; b) to penalise a party for behaving inappropriately (e.g. withholding information or disclosure) and to compensate the other party for the additional costs they have incurred in dealing with such behaviour.

The case of SM v BS (Legal Services Payment Order) examines the issue of legal funding in high-net-worth divorce proceedings in relation to the former issue highlighted above, to ensure both parties can fund adequate legal representation. It highlights the Court’s approach to awarding financial support for legal fees, ensuring both parties have fair representation while maintaining proportionality in litigation costs.

SM v BS (Legal Services Payment Order)

The High Court has ordered a husband to pay £750,000 towards his wife’s legal costs but cautioned against any reckless spending, as first reported in the Law Society Gazette.

Nicholas Allen KC, acting as a Deputy High Court Judge in SM v BS (Legal Services Payment Order), warned that the wife may be required to repay some of the sums awarded on account.

The court heard that the wife had requested £1.1 million to cover outstanding and anticipated legal fees, including £241,000 for unpaid invoices and £651,000 for financial remedy proceedings. She also sought £47,000 for costs related to an upcoming maintenance Court hearing, where she sought to increase her monthly payments from £29,500 to £34,900.

The husband’s legal team described the wife’s demands as ‘staggering,’ noting that he had offered to contribute £250,000—the same amount he was paying for his own Solicitors.

The judge referenced previous cases where legal costs had been labelled as ‘nihilistic’ and ‘apocalyptic,’ noting that, given the current rate of spending in this case, similar descriptions might be warranted.

The husband contested the claim that his wife required an upfront payment to continue legal representation. He argued that her lawyers had only recently suggested they might withdraw, a statement he believed was made with the upcoming funding application in mind.

He also highlighted that the wife’s solicitors had agreed to continue acting for her as long as unpaid fees remained below £300,000, meaning there was no immediate need to settle outstanding costs.

The judge ruled that the husband must pay £178,000 towards historic legal fees, £500,000 for future financial remedy proceedings, and £75,000 for matters related to the family home.

“I am satisfied that, without this sum, the wife would not reasonably be able to secure appropriate legal representation for these court proceedings,” the judge stated, warning against the risks of one party’s solicitors becoming financially dependent on their client.

“This figure represents a reasonable balance in this case, addressing the issue of funding without determining the final liability for costs.”

In his conclusion, the judge reiterated the husband’s lawyer’s argument that the wife appeared to believe she could “spend as she pleases on this litigation, without any regard for proportionality,” assuming unlimited funds would be available to cover the costs.

He added, “I do not know whether this is the wife’s belief. If it is, it should not be.”

Why is SM v BS (Legal Services Payment Order) important?

The case of SM v BS (Legal Services Payment Order) could have significant divorce solicitors cost implications for future financial remedy proceedings. In this case, the Court made an order for the husband to pay a substantial sum towards his wife’s legal costs, including both historic and future expenses related to financial remedy proceedings. This decision sets a precedent for how Courts may approach legal funding in similar cases, particularly when one party requires financial assistance to continue the litigation.  It should be noted that the assets in dispute were pleaded at up to £55 million, and therefore the costs payment on account was considered proportionate to the overall value of the dispute.

As SM v BS highlights, the Court is likely to assess the reasonableness of the costs requested and take into account the financial circumstances of both parties. The judgment also emphasises the importance of proportionality in legal spending, as the wife was cautioned against excessive expenditure. This could encourage future high net worth litigants to carefully manage their legal costs and avoid unnecessary or inflated spending, as the court may be less inclined to award funds for what it deems to be unreasonable or unsubstantiated claims.

In addition, the case raises awareness of the need for clear and accurate documentation of costs, as both parties will need to justify their legal expenses in court. Future cases may see more scrutiny of legal fees, and parties involved in similar proceedings could face increased pressure to provide transparent and reasonable cost breakdowns.

Overall, SM v BS serves as a reminder of the evolving nature of legal costs in divorce proceedings, and its outcomes may influence how courts handle financial assistance for legal fees, particularly in high-net-worth or contentious divorce cases.

What are the Costs Involved in Divorce?

Divorce Solicitor costs are usually not so significant in everyday financial disputes, though the components of overall costs are generally the same.  Here are some key points to consider regarding divorce legal costs:

Solicitors’ fees: Family law solicitors offer legal advice and support throughout the divorce process. Their fees can differ depending on factors such as experience, reputation, and location. Divorce lawyers may charge an hourly rate or fixed fee for their services.

Court fees: When applying to the Court for divorce in England and Wales, there are Court fees that need to be paid. The person applying for divorce will be responsible for paying the Court fees.

Mediation costs: Mediation is a process in which a neutral third party helps the divorcing couple reach agreements on issues such as child custody, financial settlements, and property division.

Before a divorce can proceed to Court, both parties must attend a Mediation Information and Assessment Meeting (MIAM). The cost of mediation can vary, but it is typically more cost-effective than litigation. Fees may be split between the parties or paid individually, depending on the agreement.

Barristers’ fees: In certain situations, you may need to hire a barrister (also known as Counsel) to represent you in court or offer expert advice on specific legal matters.

Barristers typically charge a brief fee for case preparation and presentation, along with a daily rate for court appearances if required. Their fees can vary widely based on their experience and reputation.

Additional costs: Additional costs may arise during divorce proceedings, including expert witness fees, document preparation fees, and court transcript fees. These expenses can accumulate, especially in more complex cases.

Divorce Solicitors Costs – Who Pays Divorce Costs?

The general principle in divorce in the UK and other family law cases is that each party bears their own legal costs. However, there are circumstances in which the Court may order one party to pay some or all of the other party’s costs. A Legal Services Payment Order is one such example however, the Court’s decision on costs can also be influenced by the conduct of the parties during the proceedings and the reasonableness of their positions.

Some of the factors which the Court may take into consideration when deciding to make a financial order include:

Conduct of the parties: The court may penalise a party for unreasonable behaviour or for causing unnecessary costs to be incurred. This could include failing to comply with court orders, pursuing baseless claims, or engaging in obstructive behaviour.

Financial disparity: In some cases, the court might consider the financial disparity between the parties when deciding on costs. If one party is significantly wealthier, the court may order them to contribute to the other party’s legal costs.

Litigation misconduct: If a party is found to have engaged in misconduct during the litigation process, such as withholding information or refusing to cooperate, the court may order them to pay the other party’s costs.

Recovering costs of divorce

A claim for divorce costs must be made at the Decree Nisi stage and should be included in the divorce petition. If the application is successful, legal costs will become payable upon the granting of the Decree Absolute.

If granted, the costs order (divorce) may state the phrase “costs to be assessed if not agreed.” In these circumstances, the process of detailed assessment will be used to decide the level of costs owed to you.

In order to recover your legal costs, you must serve a bill of costs upon the paying party alongside a Notice of Commencement.

The bill of costs should itemise all expenses you seek to recover, including court fees, solicitor fees, expert fees, and any additional costs incurred due to the divorce proceedings.

The paying party will have 21 days to respond to the bill of costs by submitting their points of dispute if they contest any of the listed expenses.

If they do not provide their points of dispute within 21 days, you will need to apply for a default costs certificate which will entitle you to recover all costs listed within the bill.

How can ARC Costs Assist with Divorce Solicitors Costs?

ARC Costs can assist in all legal costs matters, including costs in family law and divorce proceedings, irrespective of whether you are a paying party or a receiving party. If a divorce cost order is made, you should seek the assistance of a costs specialist immediately.

We are highly experienced Costs Draftsmen/Costs Lawyers and have been successful in recovering substantial amounts in divorce solicitors costs for our clients. We can assist in the whole of the detailed assessment process, from drafting your Bill of Costs and Points of Reply to conducting negotiations with the other side before advising on whether the claim should proceed to a Detailed Assessment Hearing, for which one of our in-house Costs Lawyers can provide representation and expert legal advice.

We can be contacted via or contact form at the top of the page, email at info@arccosts.co.uk, or by telephone on 01204 397302. For more information on divorce solicitors costs, please find out more about our speciality areas of expertise and our services on our legal costs page.

Follow Us