Maintenance in the time of Corona: R v R  EWHC 195 (Fam)
- This hearing was one of many hearings in this matter. The judge, Nicholas Cusworth QC (sitting as a Deputy High Court Judge) (‘the judge’), had to deal with what he described as a “raft of applications”, consisting of:
- The husband’s (‘H’) application for interim maintenance (for rent and living expenses);
- H’s application for a Legal Services Provision Order (‘LSPO’)
- W’s application to amend the terms of an existing Hemain injunction;
- H’s requests for W to provide a range of further disclosure pursuant to the Hemain proceedings; and
- The assessment, including its basis, of a costs order made against W on 1 December 2020.
- The parties also sought directions in relation to Children Act proceedings concerning their two children. In the end the judge confined himself to dealing with only the first two issues.
- The court had already dealt with Hemain proceedings and an ex parte application for a non-molestation order. These were dealt with by a consent order and undertakings respectively.
- Moor J listed the matter before the judge, providing that in the meantime W would pay £11,166 pcm to H and H would provide further evidence in relation to the rental valuations he had previously provided for the former matrimonial home. This hearing took place with the backdrop of W’s argument that a post-nuptial agreement had been agreed with H whereby he disavowed the making of any claims against W in the event of a divorce.
- The judge had to decide:
- the appropriate quantum of H’s housing need;
- the appropriate quantum of H’s other income needs;
- the quantum of a LSPO and to whom it should be paid.
- The judge set out the principles distilled by Nicholas Mostyn QC in TM v ML & Ors  EWHC 2860 (Fam). He decided that this was a case in which the court’s intervention was manifestly required.
- W appeared to have a significant asset base, disclosing assets of some £29 million. However, her case was that £12.7m of this was held in trust for the children and a flat worth £7m was held for her brother. The judge acknowledged that W’s needs did not appear to be in issue.
- W also disclosed a business interest, the value of which was disputed. The judge was not able to make a determination on these points at this stage. W argued that she had a relatively modest salary of c. £120,000 and that the parties had lived off capital in order to afford what W acknowledged was spending of some £20,000pcm as a family.
- The judge took into account the fact of the jurisdictional dispute, the forum issue and the alleged post-nuptial agreement.
- The judge dealt with the two strands of housing need and income needs. He sought to arrive at an amount which would allow H to rent somewhere reasonable in the same area of central London as the family home. In so doing the judge had regard to the previous standard of living, in as much as this could be fairly assessed. H had sought to put into evidence a letter from an estate agent purporting to identify a rental value for the former family home of £5,500pw. The judge placed relatively little weight on this, relying instead on the property particulars provided by each party. The range of options provided by the parties was between £1,600pw and £6,000pw. The judge was unconvinced by some of the options at the higher end of this scale.
- H sought almost £22,000pcm for his income needs above rent. W offered just £5,500. H had relied on an analysis of outgoings which, when itself analysed, appeared to have included a fair amount of double counting on internal transfers. H’s budget disclosed a number of items which the judge was not convinced were necessary, such as a live-in nanny for the children, whom H did not at the time have the care of, and an element of capital provision.
- One of the issues the judge had to deal with was the pandemic lockdown, which appeared to curtail many of the outlays H purported to need (e.g. gym membership). The judge in the end recognised that H would likely have a surplus during the remainder of lockdown which he could then deploy on other items.
- The was agreement between the parties that there should be a LSPO to help H fund his legal costs. The main issue for the judge was whether or not to award an LSPO in relation to costs already incurred, which has been a much-debated subject by judges and practitioners. H had previously instructed different solicitors, to whom significant sums were owed. The judge decided that he had to find a way to strike a balance of reasonableness on the facts of this case which would be sufficient to allow H’s representatives to continue to act. Again, the judge took into account the issues concerning jurisdiction, forum and alleged agreement.
- W proposed to fund H to the tune of c. £670,000, albeit by charging the former family home on a pound for pound basis for these costs as well as hers. The judge rejected this pound for pound approach, with an eye on the available assets in this jurisdiction being thus potentially depleted.
- The judge concluded that H should be awarded £11,000pcm for his housing need and £9,000pcm for his other income needs. This second figure represented only slightly less than half of the family’s discretionary spend.
- The judge concluded that there should be a LSPO of £200,000, amounting to just over half the outstanding sums owed to H’s solicitors. The judge made no award in favour of H’s former solicitors. In addition the judge awarded ongoing payments under the LSPO to take the parties to June 2021, which amounted to £750,000.