At arriving at a decision as to costs in matrimonial matters, judicial officers take into account a variety of factors. These factors include:
- The respective means of the parties;
- The conduct of the parties to the litigation; and
- The duration of the litigation and the degree of success of a particular litigant.
There appears to be a predilection in matrimonial matters for each party to pay their own legal costs, unless there is sufficient reason to deviate from this generality. This is because, understandably, matrimonial matters are often emotionally-charged and fault cannot always be easily attributed to one person.
Section 28 of the Constitution provides that the best interests of a child are of paramount importance in all matters concerning that child. It is the view of some judicial officers that parties should not be penalised for litigating in what is, in their respective opinions, the child / childrens best interest/s. To impute a penalty in these instances may result in the untenable position that a person, who genuinely believes that a particular course of action is in the best interests of the child, is dissuaded from approaching the court for the appropriate relief, for fear of a substantial costs award being made against him or her.
A parent who acts unreasonably, however, may not receive the same benefit of the doubt, for example, a parent, who deliberately misleads the court by failing to make a full disclosure of assets in statements made under oath, can be penalised even though the matter before the court involves the best interests of minor children.
With the provisos that orders as to costs remain within the discretion of the presiding officer, and that each matter is assessed on its own merits, parties who perpetrate serious misconduct during the course of litigation, even in matrimonial matters involving the best interests of children, will do so at their peril.