Litigation costs order in family law

Despite the fact that in civil law it is common for the party who loses the case to be ordered to pay the litigation costs, this is a rarity in family law. In this blog I will discuss the situations when an order to pay legal costs in family law is possible.

Main rule: compensation of legal costs

According to Dutch law (article 237 Code of Procedure) in civil law, the party found to be in the wrong by judgment is ordered to pay the costs. The judge may also award costs in whole or in part between spouses, registered partners or other life companions, blood relatives in the direct line, brothers and sisters or relatives by marriage in the same degree, as well as if the parties have been found to be in the wrong on some points. 

In family law, litigation costs are generally compensated, which means that each party bears his/her own costs. This means the costs for his/her lawyer but also the costs of having the case heard by the judge, the so-called court fee. The idea behind this is that family cases are not just about business and legal arguments, but that emotions also play an important role. In that case, an order to pay costs is considered undesirable.

However, this does not mean that an order to pay costs is not possible in family law.

Reasons for orders to pay costs in family law

From previous decisions of judges, four reasons can be derived on the basis of which a judge in family law can order a party to pay the legal costs. This is the case:

- if there is needless litigation, which means litigation without a proper basis for it;
- if the request is insufficiently substantiated;
- if the procedural conduct of a party justifies an order to pay the costs, or;
- if a party abuses the procedural law.

Actual costs or liquidation rate

When ordering costs, the judge can choose between an order for the actual costs of the proceedings or the so-called liquidation rate. In the first case, the full costs, as they appear from the bills sent by the lawyer, must be reimbursed to the other party.

In the second case, not the actual costs should be paid, but an amount that follows from the liquidation rate tables (which in fact always leads to a lower amount than the actual costs). Case law shows that judges, when they impose an order to pay costs, generally follow the liquidation rate.

Some recent judgments

In January 2021, the Court of Appeal of ’s-Hertogenbosch (ECLI:NL:GHSHE:2021:234) reached an order to pay the costs of proceedings in a case concerning guardianship and mentoring, in which the applicants had deliberately not called their sister to appear in the proceedings.

In February 2021 (ECLI:NL:RBNHO:2021:1414), the District Court of North Holland ruled that the woman who requested an increase in alimony during the divorce proceedings, after it should have been clear to her after receiving the husband’s statement of defense that such a request had no chance of success, had to pay the husband’s legal costs.

At the beginning of this year, the Zeeland-West Brabant District Court ordered a woman in divorce proceedings to pay the costs of the proceedings because she had involved the husband in the proceedings without prior consultation (ECLI:NL:RBZWB:2021:736).

Conclusion

Compensation of legal costs is the rule rather than the exception in family law. In exceptional cases, however, an order to pay the costs of proceedings in family law may be justified.

If you have any questions on this topic, please contact one of our lawyers without obligation.