Will I have to pay my ex's legal fees?

A common concern for parties involved in family law proceedings is whether they may be required to pay their former partner's legal costs. Many people assume that the person who "loses" a case will automatically be responsible for the other party's legal fees. However, family law operates differently from many other areas of litigation.

The general rule in family law

The general rule in family law is that each party pays their own legal costs. This means that, regardless of whether a matter relates to parenting, property settlement or financial issues, parties are ordinarily responsible for their own legal expenses.

This approach recognises that family law disputes often involve complex personal and financial circumstances, and that imposing costs orders routinely could discourage parties from pursuing legitimate claims or defending proceedings.

However, this is only the starting point. The Court has discretion to make an order requiring one party to contribute to, or pay, the other party's legal costs in appropriate circumstances.

When can the Court make a costs order?

When deciding whether to make a costs order, the Court will consider the circumstances of the particular case. Factors that may be relevant include:

• the financial circumstances of the parties;
• whether a party has received legal aid;
• the conduct of the parties during the proceedings;
• whether a party has been required to take unnecessary steps because of the other party's actions;
• whether a party has been wholly unsuccessful in their case; and
• any offers of settlement that were made before or during proceedings.

The Court does not simply award costs because one party was unsuccessful. Instead, it considers whether there are circumstances that justify departing from the usual position that each party pays their own costs.

Litigation misconduct

A party's conduct during the proceedings can be an important consideration. The Court may make a costs order where a party has conducted the litigation in an unreasonable manner.

Examples may include:

• refusing to participate in genuine settlement negotiations;
• failing to comply with Court Orders;
• unnecessarily prolonging proceedings;
• making allegations that are unsupported by evidence;
• failing to provide proper disclosure; or
• causing unnecessary legal costs to be incurred by the other party.

Parties should remember that family law proceedings are expected to be conducted efficiently and reasonably. A failure to do so may have financial consequences.

Financial disparity between the parties

The difference in the financial circumstances of the parties can also be relevant. For example, where one party has substantially greater financial resources or income than the other, the Court may consider whether it is appropriate to make a costs order.

However, financial disparity alone does not automatically mean the wealthier party must pay the other party's legal fees. The Court will consider all circumstances, including the conduct of both parties and the merits of the proceedings.

Offers of settlement and costs risks

Making and considering reasonable settlement offers is an important part of family law litigation. If a party refuses a reasonable offer and later obtains an outcome that is no better than the offer made, this may create a risk of a costs order.

For this reason, parties should carefully consider all settlement proposals and obtain advice before rejecting offers.

This article is general information only and does not constitute legal advice. Every matter is different — speak with one of our family lawyers about your specific circumstances.

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