Previously, we informed you about the possibilities of an order to pay litigation costs in family law based on Dutch law. We explained that unnecessary litigation by one of the parties can be a reason for the judge to make an award of costs, based on Dutch law. Recently, there have been three verdicts that show a trend regarding the order to pay legal costs in divorce proceedings.
Order for costs of proceedings
In a judgment of 7 December 2021, the Zeeland West Brabant District Court (ECLI:NL:RBZWB:2021:6148) ordered the husband to pay the costs of the proceedings. The reason for this was as follows. Prior to the proceedings, the wife had requested her ex-husband to send her financial documents, so that an assessment could be made as to whether the agreed amount of maintenance should be revised. The husband refused and even after a reminder did not respond, forcing the woman to start legal proceedings. In the proceedings, the financial documents were eventually submitted by the husband and it appeared that the alimony did not need to be changed. The court considered that the husband should have informed the woman earlier about his financial position and should not have waited until the woman had started legal proceedings. By wrongfully not sharing this information, the husband wrongfully forced the woman to start legal proceedings and to incur costs.
The Court of Rotterdam (ECLI:NL:RBROT:2021:13183) also recently ordered the man to pay the woman’s legal costs. Because of the way in which the man conducted the proceedings, the woman was unjustly forced to incur costs for hiring a financial advisor. This would not have been necessary if the man had given a more detailed explanation of the financial documents he had submitted, and he was also held responsible for the fact that the financial documents were not submitted until late in the proceedings.
Finally, on 4 January 2022 (ECLI:NL:GHARL:2022:105), the Arnhem-Leeuwarden Court of Appeal also gave its opinion on this subject. The court of appeal ordered the husband to pay the costs of the appeal, because the husband had only contributed his financial documents to the appeal proceedings. The woman therefore had to litigate unnecessarily.
Actual costs or liquidation rate
In all judgments the legal costs were ordered according to the so-called liquidation rate. This means that a party is not ordered to pay the actual costs of the proceedings. The liquidation rate is calculated on the basis of the liquidation tables and is almost always lower than the actual costs incurred.
Conclusion
The common thread seems to be that an order to pay costs lurks if the other party has to incur unnecessary costs and is wrongfully forced into (costly) proceedings.
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