The Costs of an Acrimonious Divorce 

Published on 22 April, 2020 | Sarah Hewitt

It may well come as a surprise to many people that most divorces are handled amicably.

No matter how much raw natural emotion is involved, the vast majority of husbands and wives are able to deal with the collapse of their marriages without rancour and move on with their lives.

It is something which myself and my colleagues at Hall Brown Family Law always advise clients to do.

Of course, reminding individuals of the reality of a calm divorce can be difficult, especially if they have read news reports of proceedings such as those which hit the headlines last week.

The Times detailed how a retired British Airways pilot, Richard Wilmot, was accused of misleading the High Court about the true scale of his wealth during what the newspaper described as “the longest running divorce-related dispute in English legal history” (https://www.thetimes.co.uk/article/e6600b24-7ff5-11ea-af15-2abf27a967e9?shareToken=40e71530309a19b30340406aee450d73).

Last October, Mr Justice Mostyn had ordered Mr Wilmot to pay his ex-wife just over £40,000 towards her legal bills and to stop harassing her and her lawyers (https://www.bailii.org/ew/cases/EWHC/Fam/2019/2765.html).

However, during the latest instalment in the case, the judge told how he had been provided with inaccurate information when making that ruling.

Commenting that “this is not an acceptable way of conducting litigation”, Mr Justice Mostyn decided to award what are known as indemnity costs.

That he did so shows how exceptional the case is, both in its length and for the conduct of someone described by the judge in last year’s proceedings as an “exceptionally vexatious litigant”.

In general, husbands and wives are required to bear the costs which they incur during a divorce unless, that is, there are exceptional circumstance, such as misconduct.

That doesn’t relate to how someone has acted during the marriage itself but during the divorce process and can cover a range of behaviour which might needlessly increase the length of time that it takes to conclude.

One such action can be a failure to make a full and frank disclosure of assets – not just a portfolio of shares or the cash in someone’s bank account but their income too.

As the divorce proceeds, both parties also have to declare any change in financial circumstances, like an inheritance, a promotion at work or a lottery win.

Some couples who can get along still sometimes find it difficult to reach an agreement on how to divide their joint assets. Courts are entirely realistic but take a dim view of anyone deliberately frustrating the process and, while doing so, increasing the overall costs.

We share their view that court proceedings should only be regarded as something of a last resort, given the expense and the stress which they can generate as well as the intense demands on the judicial system.

In recent years, there has been a move to encourage couples to embark on Alternative Dispute Resolution (ADR) to reach a compromise without needing a court hearing.

As in the case of Mr Wilmot, judges can add indemnity costs if they feel that a spouse is responsible for making the divorce protracted and overly expensive.

They can even go further.

In 2018, property developer John Hart was jailed for 14 months after a judge ruled that he had not met the requirements of his divorce (https://www.theguardian.com/uk-news/2018/mar/15/elderly-millionaire-jailed-for-contempt-of-court-over-divorce-deal).

Five years earlier, the businessman Scot Young had been imprisoned for six months for “flagrantly” refusing to provide details of his wealth during his divorce (https://www.independent.co.uk/news/uk/home-news/property-tycoon-is-jailed-for-contempt-in-divorce-row-over-his-missing-400m-fortune-8454596.html).

The very threat of that sanction via something known as a penal notice is only done in extreme examples of spouses not abiding by the divorce process.

I understand how men and women might find it hard to come to terms with the demise of a marriage which might have lasted decades.

Even so, it’s worth remembering that after a divorce process taking months has been concluded, former spouses need to get on with the rest of their lives.

That perspective and patience is something which serves couples well, especially if they have had children together.