Understanding Solicitors' Charges for Divorce
The first thing to remember about solicitors' divorce charges in England is that there are normally three possible legal issues involved in a divorce:-
(1) The divorce itself. It is obtaining the divorce - and, more particularly, the decree absolute - which enables both parties to remarry if they wish. This part is simply what brings the marriage to an end and it is legally distinct from the two following issues.
It will be appreciated that not every divorce involves a dispute over all of these issues. Very often, for example, there will be no children and/or matters involving the children will have been resolved by agreement rather than by court action. In fact, the latter is what happens in the majority of divorces where there are children and disputes involving children, while not exactly rare, are nevertheless not normally a feature of most divorces.
It is more common to have disputes over the matrimonial property - who gets what and whether any maintenance will be paid etc. Both of these problems, namely problems relating to children and/or the matrimonial property, are legally distinct from the mere process of obtaining the divorce and usually have to be charged for on a quite different basis. The truth of the matter is that these two problems can usually only be charged for on a time basis as is the case with most litigation and more details about this are given on the page relating to time costing. Some of these disputes can be resolved very quickly but others can be very much more difficult and require a correspondingly greater amount of legal input.
It is, however, usually possible to charge a more or less fixed fee for obtaining a divorce - ie the first of the three legal issues mentioned above - because in practice the overwhelming number of divorces are not contested and proceed, essentially, by agreement. Contested divorces are very uncommon and would have to be charged for on the same basis as any other contested matter just as the other two contentious matters mentioned above normally are.
Assuming that the divorce is not contested, the first element in the cost of obtaining a divorce is the court fees. There is a court fee of (currently) £300 to issue the divorce petition which has to be paid to the court. Similarly, there is a court fee of £40 payable to obtain the decree absolute and (normally) there is an affidavit which needs to be sworn during the proceedings which costs approximately £7.50 in most cases. This means that the total disbursements - ie sums payable to third parties - are therefore in the region of £350.
It should perhaps be mentioned that these figures are not cast in stone. For instance, sometimes the Respondent (ie the person who receives the divorce petition as opposed to the person who issues it - called "the Petitioner") fails to respond to the petition and so it may be necessary to arrange personal service by means of a bailiff or some other course may need to be adopted. Steps like these incur additional court fees (and possibly legal costs) but in the majority of cases the "disbursements" amount to £350 or so.
After the court fees have been taken into account the solicitor needs to be paid for the legal work involved. Naturally, this varies from solicitor to solicitor and the client is recommended to get a firm quote on this in advance. It is likely to be in the region of £400 or so plus VAT so the total cost of obtaining a divorce will probably be something in the order of £800 once the court fees & VAT etc have been taken into account.
There is no especial reason why this sum cannot be shared equally between the Petitioner and the Respondent (because the Respondent usually incurs no significant separate legal costs in obtaining the divorce) and this can often be agreed. Such an agreement sometimes takes the form of, "All right, I will not defend the divorce if you agree not to ask for the divorce costs from me", and that may well be acceptable but in fact the costs of the divorce can be split in whatever proportion the parties wish to agree upon. Sometimes the Respondent will be a non-working wife and the Petitioner will agree to bear the costs of the divorce and at other times the divorce is "amicable" and the Petitioner and Respondent bear the costs of the divorce equally. (At other times the Petitioner wants the full pound of flesh and demands all the divorce costs! This is understandable but also often counter productive unless there are good reasons for it on other grounds).
It is worth mentioning this because the most common ground for divorce is "unreasonable behaviour". The reason this is so is because it enables the parties to get an "instant divorce" and it really does not matter who divorces whom for what. That does not normally affect any subsequent issue - such as questions of maintenance or relating to the children, for example - and so it is sufficient that one of the parties files for divorce based on the unreasonable behaviour of the other. In practice when a marriage breaks down it is not so difficult to find examples of unreasonable behaviour on both sides and very often it is "six of one and half a dozen of the other." The important thing is simply that the marriage be brought to an end because that is what is best for both parties and it really does not matter who issues the petition in many cases. It is, however, simpler and cheaper if only one party does it and the other just indicates to the court that he/she will not defend the petition.
So long as it is explained neither party usually has much difficulty in accepting this. It does need to be explained, though, because no-one really likes receiving a petition based on their unreasonable behaviour and a very common reaction is, "I'm not having this. I'm going to defend it and issue a petition based on your unreasonable behaviour." In most cases there would be no purpose in doing this and it would be counterproductive in that it would just serve to increase costs, delay the whole proceedings and the parties would be divorced just the same at the end of the day. Only the lawyers would gain.
It is worth explaining this in some detail because the normal rule in divorces involving unreasonable behaviour is that, unless there is agreement between the parties to the contrary, the courts order the Respondent to pay the whole of the divorce costs. Very often this is not what the parties themselves want and the fact that the Respondent may be ordered to pay the court costs is frequently a deterrent to returning the papers to the court quickly or at all. It is therefore frequently helpful for the subject of who is to pay what costs to be agreed at this point if it has not been agreed before.
Incidentally, it is normally unwise for a Respondent to return the Acknowledgment of Service (the document which the court requests be returned) without agreeing the subject of the costs. If one fails to do this the court makes the usual order that the Respondent do pay the divorce costs and it will be appreciated that when the Petitioner's solicitor submits a bill which he knows is not going to be paid by his own client there is a risk that the bill might be higher than it would have been had there been agreement. It is worth bearing this in mind.
Finally, it is probably worth mentioning that it is sometimes possible to get a limited form of Legal Aid called "Legal advice and assistance" to obtain a divorce. However, there is a strict means test applied and in practice it is only available to those on Income Support or in receipt of some such benefit. Nevertheless, if the circumstances do apply it worth considering especially if there are no significant matrimonial assets. If there are such assets and the Petitioner recovers them in due course in the "ancillary relief" proceedings the Legal Aid Board will recoup its costs from the assets recovered by means of the "Statutory Charge". Under these circumstances Legal Aid is not quite as "free" as people often imagine.
Please contact David Terry at David_Terry@dterry.demon.co.uk if you need any further information. People very often have the most exaggerated fears about the legal costs of a divorce and, although it would be wrong to suggest that at least a few of the horror stories might not have some foundation in fact, the costs are generally more modest than one might imagine. Also, choosing the right lawyer can save a great deal of money in the long term so it pays to choose carefully.
