Case No. BV19D14014

30.The amount each owed was quite different, about £8000 of the former husband compared to about £28,500 of the former wife. This was not a needs-based case. Therefore the recent Court of Appeal decision of Azarmi-Movafagh v Bassiri-Dezfouli (2021) EWCA 1184 does not directly apply. In that case in broad summary the Court of Appeal said that legal costs outstanding should be or at least could be part of the needs claims of the respective parties and provided for in a needs award to the applicant.31.But if in the sharing process, working out what is the total available marital pot before equal division, the liability for the outstanding legal costs are brought into account as if they were genuine marital debts of one or rather, I think there is a real risk the court is going down the needs approach in an entirely sharing case. If the differential is minor, then the court is unlikely to be troubled. It was not here. If the outstanding costs are deducted before the marital pot is assessed and then the pot is shared equally, one party is in effect funding or subsidising the costs of the other. That seemed to me to be inconsistent with the expectation that the marital partnership assets, acquired during the marriage, should be divided equally.32.As it happened in this case, I did include them as part of the sharing partnership. I gave a reason that the applicant would have had to have undertaken more running to get the case into a state of play for settlement than would a respondent. There is something in this. I also record I was aware what I was going to decide on the so-called “advance” element. The feeling of fairness discretion is strong with judges in the family court, however sharp is the dividing line of equal division. I believe that element was within my thinking of the fairness. But it did make me ask vital questions about whether in a case like this, the amount each party owes for the outstanding legal costs should be brought into the partnership accounts pre division or whether it should be simply their own liability?33.I believe that if I had not anticipated the “advance” element as below, I would have directed that each party took responsibility for their own outstanding legal costs. After all, what does it mean to have no order as to costs? This is behind much of the thinking and concerns of this judgement. I worry it is part of the blurring of the distinction between each meeting their own costs (no order) and the outstanding costs liabilities on a sharing balance sheet. The former wife might in retrospect consider herself fortunate to have had this outcome here and I’m not sure it should be the outcome in the general scheme when each meets their own outstanding liability for their costs.34.However it is part and parcel of the far bigger issue on how the legal costs of each party should be dealt with in the sharing exercise, the 3rd element below and the most substantial one2nd