Where the petitioner sought 50% of their costs in relation to the divorce suit in the petition, can they increase their claim to 100% of their costs on applying for the decree nisi?

Where the petitioner sought 50% of their costs in relation to the divorce suit in the petition, can they increase their claim to 100% of their costs on applying for the decree nisi?

Produced in partnership with Paul Infield of The 36 Group

Whether or not a party should pay costs, and if so when and how much, is at the discretion of the judge. In principle, costs are awarded on the basis of CPR 44 (as modified by Family Procedure Rules 2010 (FPR 2010), SI 2010/2955, Pt 28) and section 51(1) of the Senior Courts Act 1981.

In the case of undefended petitions, the district judge will determine, when granting a certificate that a party is entitled to a decree nisi or decree of judicial separation in matrimonial proceedings or a conditional order or a separation order in civil partnership proceedings, whether the court’s intention is to make a costs order. The starting point is a 'clean sheet'. In practice, most courts appear to order costs against the respondent when one is sought, where the ground relied upon in the matrimonial proceedings is one of those traditionally described as a 'fault' one, ie adultery, unreasonable behaviour and desertion.

In cases based on two years’ separation and the consent of the respondent, half the costs of the suit may be claimed (Hymns v Hymns). As a condition of giving their consent, the respondent may properly require the petitioner to pay all the costs (Beales v Beales). Where the ground is five years' separation, an order for costs should not normally be sought or made (Chapman v Chapman).

A claim for costs must be made in the divorce petition. If the petition contains such a claim the court may make an order for costs. If there is a dispute about costs, FPR 2010, SI 2010/2955, 7.21(2) requires any party wishing to be heard on costs to give written notice to the court and all other parties of an intention to attend and apply for, or oppose, an order for costs not less than 14 days before the hearing listed in the certificate. FPR 2010, SI 2010/2955, 7.21(3) permits the court to make any further directions in respect of the hearing—which may be to seek a response from the other parties and/or list the costs dispute separately from the pronouncement of decree nisi when there will be sufficient time to deal with the matter.

On the issue of whether a party can effectively change their mind about their application for costs in the petition, a party may decide not to pursue a claim for costs, or they could apply to amend their petition to claim costs not sought previously, but there does not appear to be any direct authority on the point of whether a party may pursue a claim for costs at the stage of the decree nisi when they have neither made such a claim in their petition nor amended their petition to do so. However, it is clear that a petition and an answer are pleadings (see Gunner v Gunner, and Grenfell v Grenfell), so that, for instance, unless they amend the petition, a petitioner cannot rely on allegations of conduct not set out in their petition (see Gunner v Gunner). Accordingly, the petition is the basis upon which the petitioner pursues their claim for a divorce and the acknowledgment of service is the response to that petition. The petitioner cannot make an allegation or claim something which is not set out in the petition. If the respondent agrees the petition in the acknowledgement of service that is, therefore, the basis upon which the court considers, under FPR 2010, SI 2010/2955, 7.20, whether to certify the matter for pronouncement of decree nisi. Accordingly, it is not open to the court to make an order for costs greater than those claimed in the petition, if not amended.

Note that on 8 April 2020 the President of the Family Division issued  Guidance on Decrees during the Coronavirus Pandemic. The guidance states that during the coronavirus (COVID-19) pandemic it will not be possible for decrees nisi, decrees of judicial separation, conditional orders and separation orders to be heard in public. Pursuant to FPR 2010, SI 2010/2955, 7.16(3)(f) such hearings will take place in private but will be recorded so that any member of the public or the press may apply for a transcript. FPR 2010, SI 2010/2955, 7.21 still applies so that any party who wishes to be heard on a question as to costs must give written notice to the court and serve that notice on every other party not less than 14 days before the hearing; nobody should attend the court hearing.

For further information, see Practice Notes:

• Application for decree nisi in divorce, in particular the section on Consideration of costs

• Costs in family proceedings, in particular the section on Divorce and civil partnership dissolution

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