Who Pays The Legal Costs in a Divorce?

In a South African divorce, the general rule is that each party pays their own legal costs — there is no automatic entitlement to have the other spouse pay, and the question of who ultimately pays is determined by a cost order made at the end of the matter. The court has discretion to depart from this default and may order one party to pay all or part of the other party’s costs, typically based on factors such as the financial means of each spouse, the conduct of the parties during the divorce, whether one party unnecessarily prolonged the litigation, or the outcome of a specific interlocutory application. Uncontested divorces usually produce no cost order against either side, while heavily contested matters can carry cost orders on the attorney-and-client scale or even de bonis propriis against a litigant personally.

The General Rule: Each Party Bears Their Own Costs

In a South African divorce — whether in the Regional Court (simplified procedure under Uniform Rule 58) or the Gauteng Division of the High Court — there is no automatic “winner” who can claim costs. The default position is that each party is responsible for the legal fees they have incurred. This default applies at first instance in both uncontested and contested matters; the question of who pays only crystallises when a court issues a cost order at the conclusion of the proceedings.

The default can be altered in two ways: by agreement (a settlement agreement that deals with costs can be made an order of court) or by judicial decision on application by either party. The court has a broad — but not unlimited — discretion to depart from the default, and must give reasons when it does so.

When the Court Can Order One Party to Pay

The court may depart from the “each pays their own” default and make a costs order against one party where any of the following factors apply:

• Financial means of each spouse — where one party has substantially greater income or assets, the court may order that party to contribute to the other’s costs.
• Conduct during the divorce — unreasonable behaviour, withholding of disclosure, or unnecessary adversarial tactics can attract an adverse costs award.
• Outcome of a specific application — for example, a defended Rule 43 application for interim maintenance, or a contested forfeiture claim under section 9 of the Divorce Act 70 of 1979.
• Settlement offers and Rule 37A offers — a party who rejects a reasonable settlement offer and then fails to obtain a better outcome may be penalised in costs.
• Litigation misconduct — vexatious, frivolous, or bad-faith applications can trigger specific cost consequences, including a personal costs order.

The discretion is broad but not unconstrained; the court must give reasons for departing from the default.

How Costs Are Quantified: The Court Scales

Cost orders in a divorce are quantified against one of the court-approved tariff scales. The scale chosen depends on the reasons for the order — pure success drives party-and-party; misconduct or unreasonableness drives the harsher scales.

Scale	Effect	When typically applied
Party-and-party	The default scale — reimburses the successful party for costs reasonably and properly incurred, but not all of them.	Standard “costs follow the result” outcome at trial or on a successful application.
Attorney-and-client	A more favourable scale covering costs reasonably incurred, including some costs that party-and-party would not allow.	Where a party has acted unreasonably during the litigation, or where party-and-party would not adequately indemnify the successful party.
De bonis propriis	A personal cost order against a litigant personally, or against an attorney personally — exceptional, punitive, and reserved for misconduct in the litigation process.	Bad-faith, vexatious, or dishonest conduct in the litigation itself.

Cost Orders in Uncontested Versus Contested Divorces

The stage at which a divorce resolves has a direct bearing on what kind of cost order emerges. The table below summarises the typical outcome in each scenario.

Divorce path	Typical cost order
True uncontested divorce — no defence filed, settlement agreement lodged with the application	No cost order; each party pays their own attorney from their own resources or the joint estate.
Settled after pleadings filed but before trial	“Costs in the cause” — costs follow whichever side ultimately succeeds at trial, becoming payable at trial’s conclusion.
Heavily contested — proceeds to trial or final adjudication	Full costs order in favour of the successful party on the party-and-party scale, sometimes escalated where the losing party has misbehaved in the litigation.
Withdrawal of the action by a party, or default judgment entered by consent	Costs order in favour of the innocent party.

Costs Are Distinct From Maintenance, Forfeiture, and Other Ancillary Relief

Searchers often conflate three different orders a divorce court can make. They are decided separately and on different tests:

• Legal costs — the fees charged by attorneys, counsel, and sheriffs in the litigation itself. Recoverable only through a cost order.
• Maintenance — spousal or child support paid during and after the divorce, decided separately under section 7 of the Divorce Act 70 of 1979, or via a Rule 43 application pendente lite.
• Forfeiture — an order under section 9 of the Divorce Act 70 of 1979 that can affect pension interest and patrimonial benefits. It is not a cost order and operates on its own statutory test.

A spouse who succeeds on a maintenance claim is not automatically entitled to a costs order, and a forfeiture order does not by itself shift responsibility for legal fees.

Pre-Litigation Cost Considerations: Mediation, Collaboration, and Settlement

Three routes exist for resolving the cost question before contested litigation takes hold:

• Mediation under the Mediation in Certain Divorce Matters Act 24 of 1987 — qualified mediators can resolve both the divorce itself and the ancillary issues, and each party’s cost exposure is typically limited to their share of the mediator’s fee plus their own attorney’s costs of attending.
• Collaborative divorce — parties agree in advance that counsel will withdraw if the matter goes to court. This provides a strong incentive to settle and reduces the likelihood of a punitive costs award being made against any party.
• Properly drafted settlement agreement — when filed with the court, the agreement becomes part of the divorce order. A well-drafted settlement typically includes a costs clause stating whether each party bears their own costs or whether one party will make a defined contribution.

Burger Huyser Attorneys’ Divorce Law team runs both mediation and collaborative-style instruction on the firm’s existing family-law practice, which means the cost question can often be addressed through a settlement before a contested cost order becomes necessary.

Practical Steps to Manage Your Cost Exposure

1. Get an upfront fee estimate and a clear cost agreement from your attorney before signing the mandate. Ask how fees are calculated (hourly, fixed-fee, capped) and what disbursements are likely.
2. Ask for regular cost reports and accounting. Most firms issue monthly statements; reviewing these prevents bill shock at the end of the matter.
3. Consider mediation or collaborative divorce for any matter that looks set to drag on — every avoided hearing reduces litigation cost.
4. Preserve and produce all disclosure documents timeously. Late or incomplete disclosure is one of the most common cost-trigger behaviours.
5. Where the other party is litigating unreasonably, raise the issue with your attorney early so it can be built into pleadings or correspondence on the record, before the final cost order is argued.

These are the practical levers a litigant controls directly. The cost order at the end of the matter is, by contrast, a decision for the court.

Working From Randburg, Sandton, or the Nearest Gauteng Branch

The question of who pays the legal costs in a divorce is one you should clarify with your attorney before signing anything. Burger Huyser Attorneys’ Divorce Law team will, in an initial consultation, walk you through how the cost rules apply to your specific situation — whether your matter is likely to settle, what your realistic cost exposure is, and where the court might depart from the default of each party bearing their own costs. The firm handles uncontested and contested divorces, mediation, asset division, and maintenance disputes from eight Gauteng branches. The Randburg head office (49 First Avenue, Linden, 011 888 0246) is the natural starting point, with the Sandton (011 253 3080), Centurion (012 644 4990), Bedfordview (011 201 7190), and Pretoria (012 471 5700) offices all fielding divorce-law instructions. The firm is rated 4.8/5 across 250+ Google reviews (Trustindex verified “Top Rated Law Firm in South Africa”), with Anna-Mi Nel heading the Family Law practice and qualified divorce mediators on staff.

Frequently Asked Questions

Does the breadwinner always pay both legal costs in a divorce?

No — there is no automatic rule that the higher-earning spouse pays both sets of legal costs in a South African divorce. The default is that each party bears their own costs, and the court only orders one party to contribute to the other where financial means, conduct, or the outcome of specific applications justifies a departure from that default.

Can I be ordered to pay my spouse’s attorney fees if I lose the divorce?

Possibly — if your spouse is more successful than you at trial or on a specific application, the court can order you to pay all or part of their costs on the party-and-party scale. In cases of serious misconduct, the harsher attorney-and-client scale can be applied.

Are there different cost rules if my divorce is in the Regional Court versus the High Court?

The underlying principles are the same, but cost orders in the Regional Court are constrained by the tariff set under the Magistrates’ Courts Act 32 of 1944, and high-cost matters can be transferred to the High Court. In either forum the default “each pays their own” rule applies unless the court makes a specific order to the contrary.

Does a settlement agreement end the cost question?

Usually yes — a properly drafted settlement agreement includes a costs clause stating whether each party bears their own costs or whether one party will make a defined contribution, and the court incorporates that clause into the final order by agreement.

Can I recover my legal costs from my spouse for an unsuccessful Rule 43 application?

Yes — costs of interlocutory applications generally follow the outcome on the application, so a successful Rule 43 applicant can claim costs from the unsuccessful respondent on the party-and-party scale. The unsuccessful applicant may similarly be liable for the respondent’s costs.

What is a de bonis propriis cost order in a divorce?

A personal cost order imposing liability on a litigant personally (or, more rarely, on an attorney personally) for costs incurred due to misconduct. It is exceptional, punitive, and reserved for bad-faith or improper conduct in the litigation process.