Can I make my ex-partner pay my legal fees?

Can I make my ex-partner pay my legal fees?

When it comes to a divorce or separation, one of the most common questions we’re asked is ‘Who pays legal fees in a divorce?’ In other words, people often want to know, ‘Can I make my ex-partner pay my legal fees?’

In the typical family law proceeding – including for a divorce or separation – parties pay their own legal costs. Of course, there are exceptions to this general rule. So if you’re heading for a divorce or separation, here are the situations where you might be able to make your ex-partner pay your legal fees.

Who pays legal fees in a divorce?

Section 117(1) of the Family Law Act 1975 (the Act) provides that each party pays their own legal costs in family law matters. However, if the Federal Circuit and Family Court of Australia (the Court) are of the opinion that the circumstances warrant it, they may order that another party (for example, your ex-partner) pay those costs instead.

Circumstances where an order for costs should be made

The Court can make an order for costs in some certain, and quite broad, circumstances (set out in subsection 117(2A) of the Act. These could include some of the following situations:

Money matters

The Court will consider the financial circumstances of each person involved in a case. The Court may make an order for costs in the case of financial inequality. So, where one spouse is financially less secure than the other, that party can consider applying for an order for costs. 

Any party applying for an order for costs will need to demonstrate that there ordinary expenses outweigh their income and that the other party has a surplus of funds after meeting their own expenses. 

Another monetary factor that might play into the decision is if one party is receiving legal aid and also needs support in meeting their legal fee obligations.

The party’s behaviour 

The Court will consider how the parties acted during the case. Did they meet their obligations? Did they share information, follow procedures and communicate well? If not, the Court might consider an order for costs.

Past non-compliance

If the parties are in court because one didn’t follow an earlier Court order, the Court will be much more inclined to assign them the legal costs.

Complete lack of success

If one side was completely unsuccessful in the case, the Court might consider issuing an order for costs to the wholly successful party.

Settlement offers

If one party tried to settle things out of court through an offer and that offer was rejected, an Order for Costs may be granted when the Court awarded an outcome that was less than the offer provided. This reflects the family law mission to encourage cooperation and to incentivise settlement. In Browne v Green (Browne v Green (2002) FLC 93-115, [57]), the Court said:

‘The failure to heed a reasonable offer in circumstances where there is adequate knowledge of the parties at the time the offer is made to give it proper consideration is something to which very significant weight indeed ought normally be given.’

Other factors

The Court may also consider any other factors they think relevant.

Parenting versus property matters

When it comes to ‘who pays legal fees in a divorce’, family law applies equally to property and parenting matters.

This is important to note because many of our clients – and others in the family law space – believe that orders for costs can’t be made when it comes to parenting matters. However, this is simply not true (Wrenstead & Eades [2016] FamCAFC 46).

Getting an order for costs

The best way to ensure you’re getting (and staying) on the right track with regard to legal costs during your divorce or separation is simply doing things the right way. Ensure that you’re meeting all the requirements of the process and certainly provide the Court with anything it asks for. Do your best to work with your ex-partner and make your best attempts to settle out of court (while ensuring you and your lawyer are looking after your own best interests too).

If you’re in a difficult financial situation, speak to our team about the opportunity to seek an order for costs from the Court. And our time is here to provide you with the right guidance to get you on the right path for your situation.

How Toomey Family Law can help

Here at Toomey Family Law, we specialise in family law, including divorce and separation cases. We have the experience you need and are here to help if you’re going through a separation or divorce. Get in touch today or check out our free resources page for information that may be relevant to you. 

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