Sunday, 7 July 2019

Matrimonial Finance Cases: New Costs Rule



  • 'Please be sensible and talk to me about the matrimonial finances.'
  • 'Go to hell.'
  • 'If you carry on like that, I'm going to court, not hell.'
  • 'Bitch.'
  • 'You attitude is going to mean big lawyers' fees for us both and that can only reduce what is available to be shared.'
  • 'Bitch.'

Four months later
  • 'We're in court in three weeks. My lawyers have sent you my proposals for settlement and you've torn the letter into small pieces and returned it to them. Not even a stamp on the envelope. Be sensible and accept the proposals or let me know how you suggest we settle. Please, please, please negotiate.'
  • 'I don't negotiate with bitches.'
Whether it's a divorce, nullity, civil partnership dissolution or separation,  there is a near certainty that there will be finances to be sorted out and nothing in the proposed matrimonial reforms will change that. If the couple can reach an agreement about who is to get what in terms of capital and income, then the court can be asked to make a consent order which incorporates what has been agreed. Provided the agreement is within the range of what the court would regard as fair if it had to decide on the split, the order will be made. Probably no court attendances necessary and no crippling lawyers' fees or just a modest bill.

Many cases fail to settle because one of the parties is intransigent, bloody-minded or just refuses or neglects to engage in attempts to settle through negotiation. If you are involved in matrimonial finance proceedings and you recognise that attitude in your partner then your armoury has been strengthened by a legal change which came into effect on 27 May 2019. 

'My dear partner, do take a look at the Family Procedure Rules 2010 Practice Direction 28A. It's been amended with you in mind. If you don't start openly negotiating with me and fast, my lawyers will be asking the court to order you to pay my legal costs - so put that in your pipe and smoke it.'

The legal change covering England and Wales means this. Although the general rule is that in matrimonial finance cases, each party picks up their own legal bill, this rule can be ditched by the judge when this is justified. And now, when deciding whether to ditch the rule and order one party to pay the legal bill of their partner,  the court is to take a broad view of the conduct of that other party. It will generally decide on a ditching if the other party has refused to openly negotiate in a reasonable and responsible way.  


A party who fails to engage in open proposals and counter-proposals, openly offers peanuts or openly refuses manifestly fair offers could now be in costs conduct trouble. Making protected proposals which cannot be shown to the judge if there is a contested hearing - Calderbank communications the lawyers call them - will not get them off the hook. 

For much much more on dealing with matrimonial finances cases, treat yourself to a copy of my book Breaking Law.