Family actions are often marked by high-conflict where legal disputes require to be resolved in the context of difficult and stressful emotional issues. In such circumstances, it is inevitable that parties to the litigation sometimes conduct it in an unreasonable manner. It is also perhaps inappropriate to regard one party as ‘the winner’ in an action concerning relationship breakdown or in respect of children where both parties have sought orders that they consider to be best for their children.

As a result, the usual rule that expenses follow success does not automatically apply in family actions and instead judicial discretion is applied flexibly. That said, there have been recent examples of where the court has been persuaded to award expenses where there has been clear success by one party over another.

ACTIONS OF DIVORCE/DISSOLUTION OF CIVIL PARTNERSHIPS

Prior to the Family Law (Scotland) Act 1985, a husband was liable for a wife’s expenses. The 1985 Act abolished that rule and the starting position is that each party is liable for their own expenses whether pursuing or defending an action.

The most recent leading authority on expenses in divorce actions is Sweeney v Sweeney. In its decision, the Inner House confirmed that in defended actions of divorce the normal rule of expenses following success is not irrelevant but should not be applied to its full vigour. That said, the court may well award expenses where the other party secures an award ‘significantly greater’ than any outstanding offer (and in this the court will pay close attention to offers from the paying party). The court is also entitled to consider the conduct of the parties, but where there has been full disclosure and agreement as to valuations of matrimonial property the just award may be no expenses due to or by either party. The court also considered whether awards of expenses would disrupt the financial provision being made.

In advising clients, consideration should be given to the following:

• (1) Whilst Sweeney and earlier cases are helpful in establishing general principles, the determination of expenses is a matter for the decision-maker in each case.