Family Law Court Expenses

If you have a dispute following the breakdown of a relationship or you have issues in relation to children you have with an ex-partner or spouse/civil partner you may have to consult a solicitor for advice on the options available to resolve your dispute.

Your solicitor may recommend a variety of options such as negotiation, mediation or collaboration. Sometimes, however, these are not appropriate or they are not successful and it is necessary to have matters decided by a court.  The cost of taking your dispute to court can be a source of significant worry, which is why court proceedings are generally considered to be the last resort.

At Macleod and MacCallum, we are routinely asked by clients, contemplating court proceedings, whether they will have to pay their own expenses if successful at court or if their opponent will have to pay.

The general rule in a court action is that “expenses follow success.” This means that if you win your court action then the other side will have to pay your expenses.  If you are not successful then you will not only have to pay your own expenses but may also have to pay the other sides expenses.  Family actions are one area of law where this general rule is not always strictly adhered to.

It can be difficult to measure success or failure in family actions, due to the complexity of the issues and the nature of the relationships between the parties. It is not always possible to say that one party “won” the case and the other party “lost.”

The court has discretion in deciding whether to award expenses and to determine the amount. Often a Sheriff will decide in family cases that each party should meet their own legal expenses.  The court will look at a variety of factors when making its decision.  For example, was it necessary to raise a court action or could matters have been resolved without going to court?  Another relevant consideration will be the respective financial positions of the parties and whether an award of expenses will cause significant financial hardship.  The behaviour of both parties, before and during court proceedings, is also something that the court will take into account in its decision making.  If for example, one party caused proceedings to be protracted unnecessarily or behaved unreasonably this may be taken into account.

Ultimately, whether or not the court will award expenses and the amount will come down to the specific facts and circumstances of the case. Your solicitor will advise you on your prospects of success from the initial appointment and will keep you informed of costs throughout proceedings.

If you would like advice in relation to a family law matter then please contact our award winning family law team here at Macleod and MacCallum on 01463 239393, to discuss your specific circumstances and receive advice tailored to your situation.

August 14, 2018