Two short sections at the end of the Matrimonial Causes Act (Chapter 282) control the cost of litigating and the abuse of it.
Section 97 — costs and security for costs
Subject to the Rules, in proceedings under this Act the Court may make such orders as to costs and security for costs, whether by way of interlocutory order or otherwise, as the Court thinks just.
Section 97 does not adopt the usual civil principle that costs follow the event. The test is simply what the Court thinks just.
That flexibility is deliberate. In a matrimonial cause the winner is often the party with the resources, and an automatic costs order against the loser can leave a spouse and children destitute for having brought a genuine but unsuccessful case.
The Court may equally order costs against a successful party who conducted the case unreasonably, or make no order at all where both parties acted properly and neither can afford to pay the other.
| Provision | Costs power |
|---|---|
| s 97 | General discretion as to costs and security for costs |
| s 68(2) | Leave to intervene may be conditioned on giving security for costs |
| s 77(3) | Costs of preparing and executing a deed under a court appointment |
| s 93(5) | Costs against a party or a person acting in collusion with one |
| ss 86, 87 | Costs orders are enforceable by attachment or as a judgment debt |
Ordering a party to give security before proceeding protects a respondent from an unmeritorious claim that will never yield a recoverable costs order.
But it can also shut a poor party out of court altogether. That is why the power is expressed as one to be exercised as the Court thinks just, and why it appears most naturally in section 68(2), where the applicant is a stranger to the marriage seeking to intervene, rather than a spouse asserting their own rights.
Section 98 — frivolous or vexatious proceedings
At any stage of proceedings under this Act, if the Court is satisfied that the proceedings are frivolous or vexatious, it may dismiss the proceedings.
At any stage, if the Court is satisfied that the allegations made in respect of a party are frivolous or vexatious, it may order that that party be dismissed from the proceedings.
It addresses a specific abuse. Under section 33(1), a person alleged to have committed adultery with the respondent must be made a party, and under section 32 may face a claim for damages.
That gives a petitioner the means to drag a named person into public proceedings, at real cost to their reputation and their pocket, on an allegation that may be baseless.
Section 98(2) lets that person be dismissed from the proceedings without waiting for trial — and section 97 then allows costs in their favour.
Frivolous — without substance; no reasonable prospect of success on any view of the facts.
Vexatious — brought to harass, annoy or oppress rather than to obtain the relief claimed.
The bar is high. A weak case is not a frivolous one, and a bitterly contested divorce is not vexatious merely because it is bitter. Dismissal under section 98 shuts a party out without a hearing on the merits, so it is reserved for cases where no hearing could assist.
What a dismissal under section 98 costs the petitioner
Part VII relief is lost. Section 78(3) preserves maintenance and custody orders only where the petition was dismissed after a hearing on the merits and was instituted in good faith. A petition dismissed as frivolous or vexatious satisfies neither condition.
The public interest machinery is engaged. Frivolous or collusive litigation is exactly what Part VI exists to catch — the Principal Legal Adviser may intervene under sections 65 and 66, and under section 69 a decree nisi may be rescinded on intervention where collusion is proved or material facts were not brought before the Court.
Section 97 governs the costs a court may order between the parties. It says nothing about what a divorce actually costs to run — filing fees, service, and a lawyer’s fees, all of which fall on the party who incurs them in the first instance.
See what a divorce costs and how long it takes. Legal aid may be available through the Public Solicitor, whose office is established by Constitution section 176.
Both sections apply only to proceedings under this Act. For proceedings in the Family Court under the Lukautim Pikinini Act 2015 — the route for parties to a customary marriage, whom section 4 excludes from this Act — costs are governed by that Act and the District Court rules. Note too that a malicious report about a child carries its own consequences: see malicious reports.
Sources
- Matrimonial Causes Act (Chapter 282) — ss 4, 32, 33, 65–69, 77, 78, 86, 87, 93, 97, 98
- Constitution — s 176
- Lukautim Pikinini Act 2015
Before relying on anything here, read the current text of the Marriage Act (Chapter 280) and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.