Who Pays Legal Costs in a Family Law Case?

One of the most common questions people ask when going through separation or divorce is:

“Who pays the legal costs in Family Court?”

Many people assume that if they “win” their case, the other side will have to pay their legal fees.

Others assume the opposite — that no matter what happens, each person simply pays their own costs.

The reality sits somewhere in between.

In family law proceedings, the general rule is that each party usually pays their own legal costs. That means even if you are successful in your parenting dispute or property settlement, you will not automatically recover your legal fees from your former partner.

However — and this is important — there are exceptions.

A recent Family Court appeal decision in which a wife was ordered to pay $25,000 towards her former husband’s legal costs after unsuccessfully appealing a property settlement outcome highlights that costs orders can still happen in family law proceedings.

Does Each Party Always Pay Their Own Costs in Family Court?

Usually, yes.

The Family Law Act provides that the ordinary position in family law proceedings is that each person pays their own legal fees.

This differs from many other areas of law, where the unsuccessful party is often ordered to pay part of the successful party’s legal costs.

The reason for this approach in family law is practical.

Family law disputes often involve parenting issues, financial hardship and emotionally charged circumstances. Courts recognise that parties should generally be able to bring genuine disputes before the Court without automatically facing the risk of having to pay the other side’s legal fees if unsuccessful.

That said, many people mistakenly think this means:

“There is no risk of a costs order in family law.”

That is not correct.

When Can the Family Court Order One Party to Pay Costs?

The Court still has the power to make a family court costs order if there are circumstances that justify it.

In deciding whether one party should pay another person’s legal costs, the Court may consider matters such as:

• whether one party was wholly unsuccessful,
• whether a party failed to comply with Court orders,
• the conduct of the parties during the proceedings,
• whether settlement offers were made and ignored,
• and the financial circumstances of each person.

In other words:

the Court may order costs where fairness requires it.

This can arise in a range of situations, including where a party behaves unreasonably, breaches orders, pursues weak litigation or unsuccessfully brings an appeal.

Can You Be Ordered to Pay Costs If You Lose an Appeal?

Yes.

And this is where the recent case becomes particularly relevant.

In this matter, the wife appealed the outcome of a property settlement decision but was ultimately wholly unsuccessful. The appeal was dismissed, and the husband then sought an order that she contribute to his legal costs.

The Court accepted that while the general rule is for each party to pay their own costs, the fact that the wife had been entirely unsuccessful on appeal justified a departure from that usual position.

Importantly, the Court did not conclude that the appeal was deliberately hopeless or vexatious.

In fact, the Court specifically said the wife’s appeal reflected a misunderstanding of the outcome rather than an intentionally meritless case. The Court also observed that the appeal itself was not complex.

Yet despite that, the Court still ordered the wife to pay $25,000 towards the husband’s legal costs.

That is an important reminder that even relatively straightforward family law disputes or appeals can involve significant financial consequences if litigation is unsuccessful.

Can Financial Hardship Stop a Costs Order?

Not necessarily.

In the recent case, the wife argued that being ordered to pay costs would cause her financial hardship.

The Court accepted that financial circumstances are relevant and must be considered. However, it ultimately concluded that hardship alone did not prevent a costs order being made in the circumstances.

Importantly, the Court also noted that a lack of financial resources is not automatically a bar to a costs order.

This is another area where many people have misconceptions.

While financial hardship may be relevant, it does not automatically protect someone from having to contribute to the other party’s legal costs.

Can You Recover Legal Costs in a Divorce or Property Settlement?

Sometimes — but it is far from guaranteed.

If you are asking:

“Can I make my ex pay my legal fees?”

the answer is usually:

Not automatically.

Unlike many civil disputes, recovering legal costs in family law proceedings is the exception rather than the rule.

However, costs orders may still be made where circumstances justify it, particularly where:

• one party has acted unreasonably,
• there has been non-compliance with Court orders,
• litigation conduct has unnecessarily increased costs,
• or one party has been wholly unsuccessful.

Every case is different, and the Court retains a broad discretion.

How Can You Reduce the Risk of a Family Court Costs Order?

One of the best ways to reduce the risk of a costs order is to obtain realistic legal advice early.

Understanding:

• the strengths and weaknesses of your case,
• whether litigation is proportionate,
• whether settlement should be explored,
• and the risks of pursuing appeals or contested hearings

can make an enormous difference.

This does not mean people should avoid bringing legitimate claims or appeals.

However, it does highlight the importance of approaching family law litigation strategically and with proper advice.

As this recent case demonstrates, while costs orders in family law are uncommon, they are certainly not impossible.

Concerned About Legal Costs in Family Court?

At Websters Lawyers, we regularly advise clients about:

• family law legal costs,
• property settlements,
• appeals,
• costs risks,
• and strategies for resolving disputes as efficiently and cost-effectively as possible.

If you are involved in a family law dispute and are concerned about legal fees, costs orders or whether litigation is worthwhile, obtaining advice early can make a substantial difference.

We offer a free initial telephone consultation to discuss your situation and provide practical advice about your options.

Call 8231 1363 to speak with one of our family lawyers.

Yimu & Qiang (No 2) [2026] FedCFamC1A 78