Family Court Costs Orders: When You Could Pay Your Ex’s Legal Bills

Family Court Costs Orders

Key Points Summary

• Family court costs orders are rare but can leave you paying tens of thousands in legal fees
• Courts only make costs orders in “exceptional circumstances” involving unreasonable behaviour during litigation
• Common triggers include refusing mediation, making false allegations, and dishonest financial disclosure
• Children cases have higher protection against costs orders than financial disputes
• Early mediation, fair negotiation and honest disclosure are your best protection against costs orders
• Legal costs in contested cases can reach £100,000+ per person before any costs orders are considered
• Two recent cases, C v S and Helliwell v Entwistle showed courts can make significant legal costs awards

You’re facing court proceedings and wondering about the financial risks. Here’s what keeps many people awake at night: could you end up paying not just your own legal bills, but your ex-partner’s too? The short answer is yes, though it’s uncommon. Family court costs orders can turn an already expensive legal battle into a financial disaster, with some recent cases seeing orders for hundreds of thousands of pounds.

The good news? Understanding when courts make these orders, and more importantly, how to avoid them, can protect you from this additional financial burden. Whether you’re dealing with child arrangements or financial settlements, knowing the rules around costs orders in family court will help you make better decisions about your case strategy.

What Are Family Court Costs Orders?

The Basic Rule in Family Cases

In most areas of law, if you lose a case, you pay the winner’s legal costs. Family law works differently. The general rule, established in cases like Gojkovic v Gojkovic, is that each party pays their own legal fees regardless of who wins. Recent changes such as the no fault divorce law have tried to reduce the animosity throughout the divorce process and you can now apply for a divorce together and share the cost of the application. The courts recognise that family disputes are deeply personal, and the emotional stakes often matter more than pure legal victory.

When the Rules Change

However, family court costs orders can be made in exceptional circumstances. The test, refined through decades of case law, focuses on conduct rather than who wins or loses. Courts will consider making a costs order when one party’s behaviour:

• Falls well outside the band of reasonable conduct
• Significantly increases the other party’s legal costs
• Cannot be justified by the circumstances of the case
• Continues despite warnings from the court

Types of Costs Orders Explained

Standard Basis vs Indemnity Basis

Standard basis costs orders require the paying party to cover reasonable legal fees, with any doubt about reasonableness decided in favour of the paying party. These orders typically recover 60-70% of actual legal costs.

Indemnity basis costs orders are more severe. Here, the paying party must cover all reasonable costs, with doubts about reasonableness decided in favour of the receiving party. Recovery rates often reach 80-90% of actual legal bills.

Partial vs Full Costs Orders

Courts can order payment of:

• A percentage of costs (e.g., 50% as seen in C v S)
• Costs from a specific date (often when unreasonable behaviour began)
• Costs for particular issues or applications
• Full costs on either standard or indemnity basis

2025 Recent Cases: C v S and Helliwell v Entwistle Compared

C v S: When Child Cases Turn Costly

This private law children case shows how rare costs orders in family court children disputes really are. The mother’s conduct included:

Procedural Failures:

• Refusing court-ordered mediation despite multiple judicial warnings
• Breaching confidentiality by sharing draft court orders
• Failing to comply with procedural directions repeatedly

Harmful Allegations:

• Making serious, unsubstantiated claims about the father
• Pressuring children to discuss sensitive topics against court orders
• Continuing allegations despite lack of credible evidence

The Court’s Response: The judge emphasised that family court costs orders in children cases require truly exceptional circumstances. Here, the mother’s behaviour was “beyond the range of reasonableness” and had unnecessarily prolonged proceedings, driving up the father’s legal costs significantly.

Outcome: 50% costs order, reduced from full costs due to the mother’s partial successes and ongoing payment for supervised contact arrangements.

Helliwell v Entwistle: Financial Remedy Fraud

This financial case demonstrates how dishonesty triggers the most severe costs orders in family court:

The Fraudulent Conduct:

• Deliberate concealment of the majority of assets
• False sworn statement confirming complete disclosure
• Using deceptive emails to prevent the husband obtaining legal advice
• Rejecting reasonable settlement offers that could have avoided the prenuptial agreement disputes

Legal Significance: The Court of Appeal described this as “fraudulent non-disclosure” – behaviour that undermines the entire family justice system’s reliance on honest financial disclosure.

Outcome: Full indemnity costs order covering both High Court proceedings and the appeal, potentially requiring payment of hundreds of thousands in legal fees.

Key Differences Between the Cases

Aspect	C v S (Children)	Helliwell v Entwistle (Finance)
Case Type	Private law children arrangements	Financial remedy after divorce
Threshold	“Exceptional circumstances” – very high bar	“Conduct” test – lower threshold
Court’s Approach	Reluctant to make costs orders	More willing where dishonesty involved
Order Made	50% standard basis (after reductions)	100% indemnity basis (no reductions)
Justification	Prolonged proceedings, refusal of ADR	Fraudulent disclosure, undermining system

Common Triggers for Family Court Costs Orders

Refusing Alternative Dispute Resolution

“We regularly see clients who could have avoided family court costs orders entirely by engaging with mediation early,” explains Jess Knauf, Director of Client Strategy at Mediate UK. “Courts increasingly expect parties to try mediation or collaborative law before litigation, and repeated refusal despite judicial encouragement is a red flag for judges.”

 

The courts have consistently held that unreasonable refusal of mediation can lead to costs consequences, even if the refusing party ultimately wins the case.

Making Unsubstantiated Allegations

Family court costs orders often follow cases where one party makes serious allegations without proper evidence:

• Allegations of domestic violence without supporting evidence
• Claims of child abuse that are found to be unfounded
• Financial misconduct allegations that cannot be proven
• Character assassination attempts through the court process

Dishonest Financial Disclosure

In financial remedy cases, non-disclosure is the fastest route to a costs order in family court:

• Hiding assets in offshore accounts
• Transferring property to relatives before proceedings
• Providing false information about income or expenses
• Refusing to provide documents despite court orders

Procedural Misconduct

Courts lose patience with parties who:

• Repeatedly breach court orders and deadlines
• Fail to attend hearings without good reason
• Submit late or inadequate evidence
• Ignore procedural rules designed to control costs

How Courts Decide on Costs Orders

The Three-Stage Test

Courts apply a structured approach when considering family court costs orders:

Stage 1: Has there been unreasonable conduct? The court examines whether behaviour falls outside the band of conduct reasonable people might adopt. This is an objective test – personal circumstances may explain but don’t excuse unreasonable conduct.

Stage 2: Did this conduct increase costs? There must be a clear link between the unreasonable behaviour and additional legal expenses. Courts consider whether costs would have been lower without the problematic conduct.

Stage 3: Should a costs order be made? Even if the first two stages are met, courts retain discretion. They consider factors like:

• The extent of unreasonable conduct
• Financial consequences for both parties
• Any partial successes or mitigating factors
• The impact on any children involved

The True Cost of Family Court Proceedings

Legal Fee Breakdown

Understanding the financial reality helps explain why family court costs ordersare so feared:

Typical Legal Costs per Party:

• Simple children arrangements: £15,000 – £30,000
• Complex children cases: £50,000 – £100,000+
• Straightforward financial remedies: £25,000 – £50,000
• High-value or complex financial cases: £100,000 – £500,000+

Additional Costs:

• Expert witnesses: £5,000 – £20,000 per expert
• Court fees: £1,000 – £5,000
• Specialist valuations: £2,000 – £10,000
• Barristers’ fees: £200 – £1,000+ per hour

The Multiplication Effect

When a costs order in family court is made, you’re not just doubling your legal bill. The paying party often faces:

• Their own legal costs throughout the case
• The other party’s costs (subject to detailed assessment)
• Interest on unpaid costs
• Potential enforcement proceedings if payment is delayed

Alternative Dispute Resolution: Your Best Protection

Why Mediation Prevents Costs Orders

“The beauty of mediation is that family court costs orders simply cannot arise,” explains Jess Knauf.“There’s no court process, no judge to offend with unreasonable behaviour, and no opportunity for the kind of misconduct that triggers costs orders.”

 

Mediation Benefits:

• Costs are typically 10-20% of court proceedings
• You retain control over the outcome
• Confidential process protects privacy
• Faster resolution reduces emotional strain
• No risk of adverse costs orders

When to Consider Other ADR Options

Beyond mediation, several options can help avoid family court costs orders:

Collaborative Law: Both parties and their lawyers sign an agreement to resolve issues without court proceedings. If the process breaks down, both lawyers must withdraw, creating strong incentives for settlement.

Arbitration: A private judge makes binding decisions, but within a framework both parties agree to. Costs orders are possible but governed by different rules than court proceedings.

Early Neutral Evaluation: A senior lawyer or retired judge gives a non-binding view on likely court outcomes, helping parties make informed settlement decisions.

Practical Steps to Avoid Costs Orders

Before Proceedings Start

Document Your Settlement Attempts:

• Keep records of all settlement offers made and received
• Document any refusal to engage with mediation or other ADR
• Maintain evidence of reasonable attempts to resolve issues

Ensure Complete Financial Disclosure:

• Gather all financial documents before proceedings begin
• Consider voluntary disclosure to demonstrate transparency
• Take legal advice on disclosure obligations early

During Proceedings

Follow All Court Orders:

• Meet deadlines without exception
• Comply fully with disclosure requirements
• Attend all hearings punctually and prepared

Maintain Proportionate Behaviour:

• Focus on resolution rather than winning points
• Avoid unnecessary applications or hearings
• Consider all reasonable settlement offers carefully

Working with Legal Advisors

“We always advise clients that preventing family court costs orders starts with choosing the right legal approach,” says Jess Knauf. “Sometimes this means accepting advice you don’t want to hear about the strength of your case or the wisdom of continuing certain arguments.”

Choose Advisors Who:

• Have experience in collaborative approaches
• Understand costs risks and explain them clearly
• Focus on resolution rather than lengthy battles
• Regularly review case strategy and costs exposure

The Appeals Process and Costs Orders

When Costs Orders Can Be Challenged

Family court costs orders can be appealed, but success is limited to situations where:

• The judge applied the wrong legal test
• The decision was plainly wrong on the facts
• Relevant factors were ignored or irrelevant factors considered
• The order was disproportionate to the conduct found

The Dangerous Precedent of Helliwell v Entwistle

The Court of Appeal’s decision in Helliwell v Entwistle has significant implications. By upholding an indemnity costs order and extending it to cover the appeal itself, the court sent a clear message: dishonesty in family proceedings will be met with the severest costs consequences.

This case may encourage more costs orders in family court where serious misconduct is found, as it establishes that even appeals challenging costs orders can result in additional costs liability.

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Frequently Asked Questions

Can I get a costs order if my ex-partner refuses mediation?

Unreasonable refusal of mediation can lead to a costs order in family court, even if the refusing party ultimately wins the case. Courts expect parties to consider ADR before litigation, and repeated refusal despite judicial encouragement often results in costs consequences.

How much could I end up paying in legal costs?

Family court costs orders can require payment of tens or hundreds of thousands of pounds. In Helliwell v Entwistle, the order potentially covered several hundred thousand pounds in legal fees. The amount depends on case complexity, duration, and the level of misconduct found.

Are costs orders more common in financial cases than children cases?

Yes. Costs orders in family court are extremely rare in children cases, requiring “exceptional circumstances.” Financial remedy cases have a lower threshold, with courts more willing to make orders where conduct significantly impacts proceedings or involves dishonesty.

Can I avoid a costs order by settling just before the final hearing?

Late settlement can help, but if unreasonable conduct has already increased the other party’s costs, you may still face a costs order in family court. The key is engaging reasonably throughout proceedings, not just at the end.

What happens if I cannot afford to pay a costs order?

Courts consider ability to pay when making family court costs orders, but this doesn’t prevent orders being made. If you cannot pay immediately, the other party may seek enforcement through various methods, including charging orders against property or attachment of earnings.

Do I need to try mediation before going to court?

While not legally mandatory in all cases, courts strongly encourage mediation. Unreasonable refusal can lead to a costs order in family court. Most people must attend a Mediation Information and Assessment Meeting (MIAM) before applying to court, with limited exceptions.

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Conclusion: Prevention is Better Than Cure

The cases of C v S and Helliwell v Entwistle demonstrate that family court costs orders remain exceptional but devastating when they occur. The financial consequences can dwarf the original dispute, turning a difficult family breakdown into a complete financial disaster.

The message is clear: courts will not tolerate behaviour that significantly increases costs, prolongs proceedings, or undermines the family justice system. Whether it’s refusing mediation, making unsubstantiated allegations, or dishonest financial disclosure, such conduct can result in costs orders in family court that leave you paying both sides’ legal bills.

“Our experience at Mediate UK shows that almost every case that ends up with a costs order could have been resolved much earlier through mediation or collaborative approaches,” reflects Jess Knauf. “We’ve worked with couples who initially thought court was their only option, but found that honest dialogue in a mediated setting achieved better outcomes for everyone, especially any children involved.”

 

The best protection against family court costs orders is straightforward: engage reasonably, consider all settlement opportunities, be completely honest in your disclosure, and seriously explore mediation before litigation. These steps not only protect you from adverse costs orders but often achieve better, faster, and more cost-effective resolutions.

Remember, family mediation offers a confidential, cost-effective alternative where costs orders in family court simply cannot arise. By choosing mediation, you maintain control over both the process and the outcome while protecting your family’s financial future.

Ready to explore how mediation can help you avoid the risks and costs of court proceedings? Our experienced family mediators can guide you through the process safely and confidentially. 📞 Call 0330 999 0959 or Book your free 15-minute consultation today to discuss your options and protect your family’s future.