AB v CD

I have had listed before me a half day hearing for interim maintenance and legal service provision for a wife in financial remedy proceedings, including provision for the discharge of already incurred fees, and for fees incurred in linked ongoing children proceedings, relating to the parties’ son EF, aged 3. That time estimate of course should have included judicial reading time, as well as time to consider, complete and deliver any judgment required at the conclusion of the hearing. The bundle which I was sent comprised 437 pages, to which was then added shortly before the hearing an additional ‘supplemental bundle’ of a further 76 pages. No permission was sought to file the additional bundle. Each side provided further a separate bundle of authorities – 6 cases in total. Each also provided a skeleton argument – the applicant wife’s document ran to 20 pages, and the respondent husband’s document to 15. Neither had sought permission to extend their documents in this way. I was given a reading list, which included three statements that ran to 261 pages including exhibits, and even without exhibits, included around 65 pages of narrative, and a further 36 pages of correspondence and numerous schedules, both of assets and costs.

Fortunately, as the case I had before me listed for ½ day in the morning went short, I was able to commence preparation for the hearing at 11am, and I had to read, without a break, until 2pm, to have covered the material that I was asked to assimilate. As it happened, most of the up-to-date material relevant to the LSPO application, where the parties were very substantially apart, was included in the supplemental bundle that I had not been asked to read, and so had not seen when the hearing commenced. I then heard from counsel from 2pm until 5pm, meaning that I had been engaged with the case for an unbroken 6 hours. I have now had to consider my determination, rather than deliver it ex-tempore, as I had not been given to opportunity to consider in any detail the accurate figures claimed by wife’s solicitors as needed by them to continue to act for the wife under the LSPO, nor sufficient time to consider the detail of the husband’s disclosure.

I am told that the original time estimate for the application was for 4 hours, but that a listing for that (still inadequate) time estimate would not have secured a hearing until May 2026. Although the impetus for securing a ½ day listing may have come from the Deputy Judge dealing with Children matters on 12 February, as I am also told, I am clear that in accepting that listing the parties were then under an obligation to present a case which (reading and judgment included) could realistically be dealt with in that time. That judge could not have known how long the hearing would require, unlike the applicant’s solicitors. However tempting an available early inadequate slot may be, the parties should have declined the offered date given the issues between them, and sought the longer time required to deal with the application fairly.

Whilst I understand that those acting for an impecunious party in financial remedy hearings may want to jump up the queue to get a LSPO hearing on quickly, to enable them to secure funding to prosecute their client’s case, it is not an appropriate practice to accept listings which they must know will be completely inadequate, in the expectation that the judge unlucky enough to have the case listed before them will make every effort to read, consider and then deliver a judgment in their own time to enable the LSPO pipeline to be opened. Had I only been able to consider the case at 2pm, as it was listed, the reading that I was given would comfortably have taken me to the end of the day, and the matter would then have to have been re-listed, realistically for a further full day. That is the approach that I will likely take if a matter such as this is similarly listed for such a short time before me again.

What makes the situation in this case very stark, is that, subject of course to further disclosure, the available assets are not especially substantial – the Form ES2 provided puts the parties’ combined wealth after a 5-year marriage at between £3.5m and £5.5m. At the time of their pre-nuptial agreement in 2021, the husband put his wealth at some £12.5m, so there has been some wealth here, but not enormous wealth.  In this case, the financial proceedings have barely begun. Neither party has yet prepared a Form E, and the first appointment is listed before HHJ Hess, I am told on 5 May 2026, some 8 weeks hence. There are proceedings on foot in relation to EF, who is currently staying in Country X with his mother. An application has been made for his return to this jurisdiction by his father, and the application before me is designed on the wife’s behalf to secure the funds which she says that she needs to enable her to do that, without risk that her status here will be affected. In short, her case is that she does not want to return EF to this jurisdiction, only then to be required herself to leave the country and leave him behind.

Ms Perrins on her behalf also sought funding to enable an application for her for a student visa which she says will secure her residence here for 2 years, but the merits and demerits of such an application, opposed by the husband, would need to be explored in much more detail, and over a much broader scope than possible at the hearing of an interim funding application. It will require attention to a wide range of considerations and evidence before it can be safely determined. I have therefore not considered whether to provide for its funding at this time. The applications in relation to EF’s welfare are also not before me today.

As I have made clear, after this hearing I can provide for interim maintenance, in relation to which the appropriate figures are not agreed, and for housing where they largely are; although the two are linked. I can also deal with the LSPO dispute, at least up until the conclusion of the first appointment. Any more will require more evidence, more time and, inevitably, more money which this family, based on the evidence currently before me, can ill-afford.

I will deal first with maintenance. I am told that the parties have agreed that an appropriate rental level for the wife and EF, on the basis that they return to this jurisdiction, is £7,000pcm. This is very similar to the amount which the husband is currently paying for the property in which he is living, and which was the former family home before the parties’ separation. This took place at the end of last year, whilst they were on holiday in Country X.

However, it is the husband’s case that in addition to this sum, all that he can afford to pay as a global maintenance amount for the wife and EF is a further £4,000pcm, in addition to which he will pay for some outgoings on the home which come in total to about £1,500pcm, so a global figure of some £12,500pcm. For himself, he says that he is currently paying a total of £8,209 in housing and utilities. He is paying a life insurance policy which costs £853pcm, and school fees and child maintenance for his 17-year-old daughter by a previous relationship, GH, totalling £8,017pcm. He puts his own further outgoings at £4,000pcm. So, a total before any further payments for the wife of £21,079pcm.

When the cost of his £12,500pcm. offer for the wife and EF is added, this would bring his outgoings to a total on the husband’s case of some £33,579pcm. in payments that he would have to meet. Against this he tells me that his current income from all sources is just £9,978pcm, of which £3,442pcm is received as salary in the UK from one of his businesses. He says this is no more than him paying himself by investing into a business that is not yet at the position of generating profits. On that basis, his position is manifestly unsustainable unless either (i) he has significant available capital resources, which he denies having (and what he has, he points out, is anyway the target of the wife’s LSPO application), or else (ii) he is very confident that something else will turn up very soon.

In January 2026, the husband accepts that he received the repayment of a long-standing Seller Note, which produced the dollar equivalent of £1,233,617. Of that he now says that he has just £338,229 left, having spent the balance by 20 February 2026 on repaying credit card debt (£157,595), paying capital calls and contributions into his various businesses (£548,422), repaying a loan against an insurance policy (£107,017), paying rent owed on his London flat (£44,021), and sundry other costs bills and rental expenses for a property in Country Y (£20,632). Of that, some £566,118 was disbursed by him after the wife made her application for interim provision on 6 February 2026. He does accept that the parties lived in a grander style during the marriage, but he says that this was due in essence to the wife over-spending. Mr Cooper for the husband urges on me that he is a man simply unable to pay more than the amount which he is offering.

The wife is now in fact seeking by way of MPS only £6,000pcm more than the amount offered by the husband. She reduced her claim to this amount on 24 February 2026, just over two weeks ago. In addition to the agreed rent at £7,000pcm, she asks for £10,000pcm in maintenance. The husband as explained is offering £4,000pcm, both with the additional payment of some bills. At the stage when she offered to accept that figure, the husband’s proposal had been to pay her £3,000pcm, not £4,000pcm, however.

In her statement in support of this application sworn on 6 February 2026 she had sought much more. Having waxed lyrically about the high standard of living in the marriage, she then sought £11,000pcm as rental provision, and £22,365pcm by way of interim maintenance, with an increase in the initial payment to enable her to fund her visa application. The total claimed of £33,365pcm is very nearly double the sum that she is now seeking. She must always have been aware that it was ambitious in the extreme. However, I was required to read a 27-page statement in which she sought to justify that higher figure. Of course, I remind myself that at the time that she swore her statement the husband’s remaining capital from his Seller Note would have stood at over £900,000.

Ultimately, any solution that I now impose on the parties is going to be rough and ready, and is very unlikely to prove to be exactly what a court would have ordered had full disclosure been made. Given that the husband offers to pay an amount that is, even on his own figures, unaffordable, I have to take Mr Cooper’s cries of impecuniosity on his behalf with a significant degree of caution, especially in the light of the abrupt disposal of ready funds into comparatively illiquid business interests which the husband accepts, whilst this application was on foot.

I also note that in his statement dated only last week – 5 March 2026 – the husband described as his financial obligations to EF whilst in London, as totalling £5,432pcm. That is nearly £1,500pcm more than the sum currently offered for the wife and EF together. Whilst of course these sums were paid when the parties were living in the same household, it is the clearest evidence of the marital standard of living insofar as it related to EF, alongside the fact that school fees and child support for GH were put in the same statement at £8,017pcm (or perhaps £7,162pcm – both figures appear). Whilst I am told that he has spoken to GH’s mother about some putative reduction to that later sum, no application has been made in that regard. In effect, therefore, the husband’s case depends on my being satisfied that his financial position is such that he cannot afford now anything but a significant cut in living standards for the wife and EF. The marital standard of living, of course, is a factor to which I must have careful regard.

The wife then has accepted some degree of restriction, by her reduced offer, but not as much as the husband seeks to impose. Whilst he has offered some evidence of payments he has sought to make being declined, and of upcoming tax bills, I am by no means satisfied that the court yet has a full and balanced picture of his financial situation. Having paid off his various credit cards in early February 2026 to the tune of over £150,000, he has already incurred a further £29,630, which may well represent a measure of personal spending in the last month.

In making this decision I of course apply all of the recognised authorities which have considered s.22 of the Matrimonial Causes Act 1973, and there is no issue between counsel about the law that I must apply – the statutory test is one of reasonableness. I have been pointed to the well-known decisions of TL v ML [2005] EWHC 2860 (Fam), Collardeau-Fuchs v Fuchs [2022] EWFC 6 (in both of which I happened to appear as counsel), and Rattan v Kuwad [2021] EWCA Civ 1. I have all of those decisions in mind, and not least Nicholas Mostyn QC (as he then was) in TL v ML making clear that it might be appropriate to make robust assumptions where disclosure is deficient – and here of course we do not yet have the benefit of a Form E from either party. Looking as I am required to do at the marital standard of living, which the husband accepts was significantly higher than what he is now offering, and is evidenced clearly by the sums which he says that he has been used to spend on EF in London, I can therefore err, if only to a reasonable extent, in favour of the payee.

Doing the best I can, I am satisfied that the amount of the periodical payments that the husband should make for the wife and EF on an interim basis should be in the sum of £8,000pcm, in addition to the £7,000pcm in rent, so that he should be paying a total of £15,000pcm. I am clear that this is much less than he was previously paying in living costs, at a time when two rental properties in London were not required. I am satisfied that he will be able to afford this at least for the next few months until the figure can be reviewed following the conclusion of the first appointment.

I am not satisfied that the wife should be exercising any independent earning capacity of her own at this time, although of course this may become a consideration. I have taken fully into account the content of both parties’ statements in arriving at this figure, and that the cost to the husband will be only £4,000pcm more than his open offer, which is a modest increase in the context of the funds that he has had and chosen to separately allocate since the turn of the year. In addition, the husband should pay the various utilities already agreed between the parties, but not those that remain in dispute, which should come from the general maintenance figure.

I now turn to the application for LSPO provision, where the parties’ respective positions could not be further apart. Again, I must be guided by reasonableness, whether I am dealing with an application under s.22ZA and ZB of the MCA 1973, or under the earlier case law. I have of course also reconsidered the decision of Mostyn J in Rubin v Rubin [2014] EWHC 611 (Fam), and the principles that he there enunciated at [13], and subsequent authorities.

By s.22ZA:

By s.22ZB:

In relation to Rubin (above), whilst I have reconsidered the whole of the paragraph, the especially pertinent sub-paragraphs at [13] would appear to be:

In the context of the parties’ apparent financial situation, the level of the costs already incurred and prospectively to be incurred by the wife are frankly alarming. As at 4 February 2026, the wife’s incurred costs stood at £51,317.50. In her statement in support of this application, she sought a further £501,654 to take the financial remedy proceedings to FDR, and to engage in children’s mediation. Of that, £224,547.22 was sought to take the financial proceedings just to the first appointment, and £41,664 was the sum allocated for the children proceedings.

I am told by Ms Perrins that despite these proceedings being in train for not much more than 2 months, the wife’s costs across all proceedings are already now £175,185.20. Of that, £79,454 relates to incurred costs in the financial remedy and children proceedings, excluding this application. That means that the wife’s costs of this MPS/LSPO application are currently £95,731.20. That is an extraordinary amount to have incurred up to a first hearing, listed (albeit inappropriately) for a ½ day appointment, at which the partner with conduct has not attended, and a silk not been instructed. It is not as if a lot of preparatory work can have been done which has the effect of reducing ongoing financial remedy costs. A further £129,963 is sought today to take the case just to the first directions appointment in eight weeks’ time. Further Children Act costs of somewhere between £37,704 and £62,130 are also sought, depending on whether the case is mediated or whether the current proceedings continue. If the wife continues to decline to return EF to this jurisdiction, for reasons that relate principally to her own immigration status, then the higher of those two figures will likely be incurred. On that basis, the total being sought now just up to the first appointment becomes £367,278.20.

The sharp incline in the rate at which these costs are being incurred is also stark. On 24 February 2026, 15 days before the hearing before me, the wife’s Children Act costs were said to be £37,505.80, and the costs of this interim application £37,947.90. At that time, the wife was prepared to accept £52,815 in funding on account of those two bills together. On the next day, the costs then incurred in the financial remedy application, aside from the interim funding claim, were said to be £20,482 (of which the wife had paid £3,000). What was being sought by a letter sent on 25 February was £12,240 towards those incurred costs, and a further £93,855 for further financial remedy costs to the first appointment. Adding all of this together, the total being sought across the two letters appears to have been £158,910. That is about 43% of the sum now being claimed to the first appointment.

The wife’s solicitors made very clear that they would seek to recover from the wife the totality of the sums incurred, in addition to interest at the rate of 2% per month, which if compounded equates to an annual rate of some 26.82%. Given the significant uncertainty about the husband’s current financial position, to incur charges at this level on a bill which is accumulating at such a rate, without any certainty that a substantial sum in excess of needs may in the end be either ordered or recoverable seems at first glance to be an extremely brave gamble, given that the welfare of a 3 year old child is at stake.

Given the precariousness of the wife’s position, the husband would have been well-advised to have made a sensible but not overblown early offer to compromise this interim application at a realistic level. Regrettably, he has not done that. Instead, he offers nothing on account of incurred costs, and a total of £20,000 in LSPO funding to take the financial proceedings to the first appointment, which he says is his own solicitors’ estimate for his likely costs to that point. Even if the wife was being charged at a less exorbitant rate, this offer would be inadequate, and so the further costs of this completely disproportionate application have been unavoidably incurred. It is desperately unfortunate for both of these parties.

I must of course consider the husband’s ability to pay, in the context of his disclosure to date as considered above. The only evident source of liquid funds currently available to him appears to be the residue of the Seller Note which he received in January, of some £338,229. I have made robust assumptions about his ability to meet an order for periodical payments at the rate of £4,000pcm above the amount that he had offered, for the limited period until after the conclusion of the initial discovery process. However, any order of the sort which the wife seeks for LSPO provision would be of an entirely different order on top. There is as yet no evidence that substantial further capital and income payments are genuinely affordable.

In those circumstances, the court must do the best that it can. As indicated, I am satisfied that the wife is not presently in a position to generate any funds by way of capital or earnings by which she could reasonably be expected to further contribute to these fees. It may be that, once she has returned to this jurisdiction with EF, which she must if the interim MPS order is to become payable, that position will need to become the subject of review, at the same time that all of these interim orders are reconsidered. However, for now I am satisfied that the burden of providing a reasonable level of fees to enable her to engage in these proceedings falls onto the husband.

The level of historic costs provided must be sufficient to enable ‘appropriate’ provision for the future, per Mostyn J in Rubin at [13](iv). On that basis I must determine what such an appropriate level will be going forward, and if that is less than the rate which the wife’s current solicitors consider that the work can be done, then it may be that she will have to review her representation. I am satisfied that an order to pay the totality of the sums currently owing to Vardags, and to make the substantial ongoing provision that they are seeking, is neither reasonable nor affordable.

I am however equally satisfied that the £20,000 total figure offered by the husband is completely inadequate for the purposes of proceedings which are not straightforward, and where the husband himself has accepted that the standard of living in the marriage was at a significantly higher level than that which he now maintains is sustainable. In such cases, the process of financial investigation is routinely fraught with suspicion and mistrust, and the costs which will unavoidably be expended will not be negligible. To take the line that he has, which I judge to be completely unrealistic, simply invites the sort of wasteful application which has now been brought to court.

I am of course aware of all of the authorities about the payment of incurred costs. As I said in R v R[2021] EWHC 195 (Fam):

In this case, I take all of these considerations into account, and remember too that I must not make an order which would prevent the husband from being able to afford a reasonable level of representation, or cause him undue hardship. I do not propose in that to limit him to the £20,000 which Mr Cooper tells me is all that this solicitor says that their preparation will cost, but I also acknowledge that given the other commitments which he asserts, he may not be able to spend with the same freedom that the wife requires, assuming that his disclosure to date has been both complete and accurate. That of course remains to be determined.

I must also guard against performing some form of summary assessment of the costs which the wife has incurred to date, as despite the disquiet which I have expressed above, I have to acknowledge that I do not have the tools comprehensively to perform such an assessment. However, I must be cautious about ordering the husband to pay a sum towards historic costs which in due course will be determined to actually have exceeded the reasonable level which should have been incurred for the wife, especially when funds are as apparently tight as they are here.

In light of all of the above I am satisfied that the total amount which the husband should now provide by way of LSPO for the wife is in the sum of £160,000, of which £100,000 is attributable to incurred costs, and should be paid by 31 March 2026. The balance should be paid in 2 equal instalments of £30,000 each on 7 April and 7 May 2026. This is a significant amount to provide for the work which has been done and will need to be done to take the case to the conclusion of the first directions appointment, albeit it that is in total less than half of the sums which are now being sought. It represents nearly 50% of his available remaining capital. On the evidence before me it is at the outside of what is affordable at this time, but should enable proper representation for the wife, whilst enabling the husband, whose task in the preparation of his Form E should be the harder, to be properly represented as well.

That is my judgment. I will deal with any costs applications on paper, but submissions should please be limited to one side of A4 per side.