Family Law
Why Being In Financial Difficulty Is Not Enough Reason For You To Be Entitled To Divorce Hearing Costs

Why Being In Financial Difficulty Is Not Enough Reason For You To Be Entitled To Divorce Hearing Costs

If your relationship with your partner or spouse should, unfortunately, come to an end, one of the experts you will want to seek out for help and advice is a family lawyer. Their expertise will be vital in helping to ensure that any divorce agreement is fair for you and your children if you have any, and also that the property settlement is fair and equitable with respect to your future finances.

It may seem that this is the only aspect of your finances that your financial lawyer can help you with and that all other matters such as your taxes and investments are what you would need to speak to your tax advisor, investment broker and accountant about. However, there is another financial element of your divorce where your family lawyer can be of huge assistance to you, and this is in asking the court to award you costs.

These costs would relate to the fees relating to any court hearing or rulings concerning your divorce, and also the costs that you incur due to the work that your family lawyers and their office have done for you. This would include meetings, drawing up legal documents, research and time spent appearing in court on your behalf. As you can imagine this can add up to a sizeable amount and one which can place a huge burden on you financially.

This is why so many individuals who struggling financially turn to their family lawyer to have divorce costs awarded, but unfortunately for them, their family lawyer may often be the bearer of bad news, which is their financial position has no bearing on costs awards.

Many people going through a divorce assume that costs are looked at the same way they would be for other court cases, where the winner gets the costs awarded to them, and the loser has to pay them. That is an erroneous understanding of how costs work in relation to divorce in Australia.

The Family Law Act (1975), upon which most divorce law is based, created the principle of no-fault divorce, and that is why almost all divorces in Australia are granted based on ‘irretrievable breakdown’. This means no blame is laid at either one of the two individuals getting divorced, and thus no costs are due, regardless of their individual financial situations.

We all know in reality that one might be more to blame than the other such as unreasonable behaviour. This could include excess drinking, wasting money on gambling, adultery or simply that they did not show their partner or spouse any love or affection. There are plenty of other reasons, and if any apply the person who feels they have been wronged will also feel they should be awarded the costs of the divorce, especially if they are struggling financially

That bad news we mentioned previously coming from their divorce lawyer will be that it is not that simple, and no matter how unfair it might seem, the Family Court will not order costs to be paid based purely on whether on a spouse or partners unreasonable behaviour, that they were not a particularly good husband, wife, or partner, or that the person claiming the costs is in financial difficulty.

However, there is some good news and that is that there are a narrow set of circumstances where the court will award costs albeit they do not necessarily relate to the time the couple was together. Instead, they relate to the other party failing to meet obligations relating to the divorce proceedings. These include:

  • Not providing lawfully requested financial documentation
  • Not answering or responding to reasonable questions relating to the divorce
  • Concealing facts, or being untruthful regarding specific documents related to the divorce
  • breaching a court order relating to the divorce

All of these could be grounds for the court to award you costs, although bear in mind these are based on your ex-partner’s or ex-spouse’s behaviour, and not any financial difficulty you might currently be in.