PS v NB

On interim financial remedy applications, the court may draw robust assumptions about a payer’s resources where disclosure is obviously deficient. The assessment remains provisional and must focus on reasonableness and fairness, including the marital standard of living and the applicant’s immediate needs.

A legal services payment order requires proof that the applicant cannot reasonably obtain appropriate legal services from another source. The court must consider the statutory factors and should avoid turning the jurisdiction into a substitute inter partes costs jurisdiction. In proceedings between spouses, an interim sale of the family home should not ordinarily pre-empt the holistic assessment required at the final financial remedy hearing where there is a measurable chance that the occupying spouse may retain it.

The judgment concerned interim applications arising from financial remedy proceedings following the breakdown of the marriage between PS and NB. The wife sought maintenance pending suit, payment of household and mortgage outgoings, and a legal services payment order. The husband sought an order under the Trust of Land and Appointment of Trustees Act 1996 for the family home to be sold.

The applications were determined after limited oral evidence and cross-examination at an interim hearing. The central issues were whether the husband’s financial presentation justified robust adverse assumptions, whether the home should be sold before the final financial remedy hearing, and what payments were reasonable for maintenance and legal costs.

1. Interim sale. The husband’s application for an interim order for sale under the Trust of Land and Appointment of Trustees Act 1996 was rejected. The court considered the factors in section 15 and the wider factors under section 33 of the Family Law Act 1996. It also applied the guidance that issues concerning the family home should, where reasonably possible, be resolved within the holistic financial remedy proceedings.
2. Financial presentation. At an interim hearing the court should retain an open mind because disclosure and evidence remain incomplete. Nevertheless, where the payer’s disclosure is obviously deficient, the court may make robust assumptions about income, resources and ability to pay. On the evidence then available, the husband’s presentation of relative impecuniosity was unreliable and the court assumed that he had access to substantial trust-related assets.
3. Maintenance pending suit. The governing criterion was reasonableness, understood as fairness. The assessment should be informed by the marital standard of living, but should not simply replicate it. The wife’s budget was examined critically and reduced to a reasonable figure. The husband was also required to meet the mortgage payments and specified household outgoings pending conclusion of the proceedings.
4. Legal services payment order. The court applied sections 22ZA and 22ZB of the Matrimonial Causes Act 1973. The wife had established that two reputable litigation funders would not provide funding. It was reasonable, however, to expect her to raise £300,000 from two tenanted properties, while excluding the property occupied by her mother. The husband was ordered to pay £164,655 towards historic costs and £202,902 towards future costs, payable by five monthly instalments of £40,580. The wife was to give the usual undertaking to repay sums if required at the conclusion of the proceedings.