Indemnity Cost Orders in Family Law

Get in touch: 1800 770 780

How can we help?

Divorce proceedings are both emotionally exhausting and financially draining. The resources of a divorcing couple can be depleted quickly, causing both sides to face serious economic consequences. In an effort to keep divorcing persons mindful of not escalating the cost of litigation, the Family Law Act has adopted the norm that each party is to pay their own litigation costs. In doing so, the law attempts to hold people accountable for the nature and extent of their legal proceedings so as to encourage less litigation and fewer costs, overall. This stance also provides the couple with a personal stake in the cost of prolonging litigation, reminding them that their monies could be better spent on their new lifestyles and their children’s ongoing needs.

The general premise is that each party to the litigation will pay their own legal costs. However, it is possible that a situation might call for one party to request litigation expenses be paid by the opposing party. In this instance, the party requesting costs be assessed needs to make the proper application to the court. An application requesting costs can be done either in writing to the Court or by verbal motion to the Court. But, before doing so, it is important for the requesting party and their legal counsel to determine if the request for costs is well-grounded. 

As such, while the general premise is that each party will pay their own legal fees, there are a few exceptions that can cause one party to have to pay the litigation costs of their divorcing spouse.  In the following instances, a Court could draft an Order directing one spouse to pay the legal fees of the other. 

Such instances might include;

  • When one party makes false allegations against the other, causing a significant delay in litigation and thereby driving up the costs assumed
  • Overextension of the use of the appeals process in which the final outcome of the case is unchanged causing one party to expend unnecessary funds for a proper defence
  • Filing ongoing causes of action for the purpose of aggravating the opposing party
  • Where one party has willfully breached a Court Order forcing the other party to seek the Court’s assistance in enforcing the Order
  • Failure to comply or provide accurate factual/financial information causing the Court to have to revisit issues in an effort to make a fair ruling
  • When the filing is frivolous in nature

In addition to reviewing these possible reasons for awarding one spouse litigation costs, the court will also balance the following factors. 

Would awarding costs;

  1. Cause the indebted party great financial hardship
  2. Go against the best interest of the child
  3. Be an appropriate remedy for the seriousness of the transgression

If any of these concerns are answered in the affirmative, the Court might reconsider awarding costs to the requesting party.

Even if there is justification for the Court to order a spouse to pay the litigation fees of the other spouse, it is imperative to remember the Court will only assess costs that they believe to be reasonable under the circumstances. This does not translate into the Court awarding the requesting party enough money to pay all of the incurred litigation fees. Instead, it simply means the Court will make a determination as to what they believe is equitable and reasonable under the circumstances. 

While it is possible to get a Court Order to indemnify the costs of litigation in family law issues, it is very rarely a productive stance to take. In all circumstances, it will always be best to cooperate to the greatest extent possible and come to an agreement that both parties can and will abide by, sans the need for further litigation and incurring the inevitable costs of the same.

If you find yourself in need of assistance with this or any other legal issue, please contact the law offices of Owen Hodge Lawyers. At Owen Hodge, we are always happy to assist clients in understanding the full ramifications of any and all of your legal needs. Please feel free to call us at your earliest convenience to schedule a consultation at 1800 770 780.


Just ask us a question

We are always ready to help you.