ex will defend petition unless no costs

Hi all,

AM just over the legal aid mark so trying to DIY divorce. My ex's sols have written stating that although he disagrees with the particulars(domestic violence for which he was convicted in court!)he will not defend the Petition provided I confirm in writing that I shall not claim my costs in relation to the divorce suit. He is (I suspect) receiving legal aid. What are the implications, pro's and con's of me agreeing this or not?

NB I am worried about escalating costs as case is going to be messy in any event as he does not agree to contact proposalfor kids, mediation already failed on that and he says he is going to apply for contact order - I have Residence order 100% already but have twice trialled alternate weekends until this broke down (drunk while with kids, threatening phone calls to me). Contact was altered to supervised contact through mutual friend but he refused to agree to that therefore not seen kids for two months. No financial assets or savings to speak of, just a lot of debt. He is a controlling person who has a history of disagreeing just to be disagreeable i.e. unless something is his idea he willnot agree to it...

Advice please!

Hmmmm, not sure. This is one of the problems of being out of practice for a long time.

It is safe to say that you have to distinguish between the costs of the petition
and the cost of Ancillary Relief.

The Petitioner will normally be awarded costs
( which in your case means the Court fee if you have done it yourself ) if the grounds are fault based, as yours seem to be.

In Ancillary Relief the normal rule is that each party pays his or her own costs, so to say you won't claim costs is perhaps stating the obvious, but even so the Court can make an award even here if one party is guilty of ' litigation misconduct ' and you should certainly not agree to forego these.

I thought you had to be notified if your
husband got legal aid. I seem to recollect there used to be a rule that costs could not be awarded against a legally aided litigant. I very much doubt if he would get legal aid to defend the case.

My advice is not to rely on me but to see if you can find a solicitor who will give you a free 20/30 minutes, which is what you need to dispose of your question. Or some CAB's offer a free legal advice service which you can use and which comes to the same thing.

LMM

Just to confirm what LMM said if he is legally aided they will not fund the defense of what is a fact in s13 of the Petition, he was convicted in a court of law.

I think his threat to defend is an empty one. He won't get legal aid to do that.

The only costs here are the actual costs of the divorce itself, which, if you are acting in person, will be your court fees (£340) and any oath fee (£7-£9).

Where you could run into difficulties would be if you take out the cliam for costs and he then fails to cooperate, leaving you having to instruct solicitors / face costs of bailiff service etc.

I would suggest that you Write to his solicitors, point out that his behaviour is well documented as he has been convicted, but that provided he cooperated fully and returns the acknowledgment of service within 7 days you will withdraw your claim for costs at special proceedure stage (or alternativly, that you will at that stage limit it to £170, being half the disbursments)

That way, you leave in your claim for costs in the original Petition, which potentially gives you a bit of protection if he turns awkward. Once he has returned the acknowedgment, you will have to do your special proceedure affidavit - one of the questions in that asks whether anything in the Petition needs cahnging - you anwser that by saying, "yes, i have agreed to withdraw / limit to £170 my claim for costs".

So you can agree to his request, but only once he HAS cooperated, not having to trust that he will.