AB v CD [2026] EWHC 1504 (Fam)

Judgment date: 25 March 2026

https://caselaw.nationalarchives.gov.uk/ewhc/fam/2026/1504

Cusworth J on an application for a legal services payment order (LSPO) and Maintenance Pending Suit (MPS).

Application by the Wife (W) for an LSPO and for MPS to engage in both the Children Act and financial remedy proceedings. W further sought funding to enable an application for a student visa, securing residence within the jurisdiction for 2 years. That application was not dealt with at the hearing on 11 March 2026.

Subject to further disclosure, with neither party at the time of the present application having filed their Form E, the parties’ combined wealth stood at some £3.5m–£5.5m. Conversely, at the time of the pre-nuptial agreement in 2021, the Husband put his wealth at a figure of £12.5m. The parties’ ability to afford proceedings was a factor considered.

Maintenance

Cusworth J considered the position on maintenance by reference to the parties’ agreed position, being that H was to pay the sum of £7,000 pcm in rent for W and their child, EF. H’s case was that, in addition to the payment for rent, he could afford a further £4,000 pcm totalling a global figure of some £12,500 pcm. H suggested that his own outgoings, before payments to W, totalled £21,079 pcm. H’s total outgoings were therefore put at £33,579 pcm against an income of £9,978 pcm.

In January 2026, H received the payment of a long-standing Seller Note, producing the dollar equivalent of £1,233,617, of which H suggested £338,229 remained. Cusworth J noted that H’s offer was an amount which, on his own figures, was unaffordable and as such took H’s ‘cries of impecuniosity’ with ‘a significant degree of caution’, considering that £566,118 of the disbursements made by H occurred after W made her application for interim provision on 6 February 2026, and H’s own case that his spending on EF whilst in London was near £1,500 pcm more than what was now offered for both W and EF together; [15].

Cusworth J noted the statutory test of reasonableness and the indication of Nicholas Mostyn QC (as he then was) in TL v ML that where disclosure is deficient it may be appropriate to make robust assumptions. On account of the standard of living accepted by H and the sums spent on EF in London, Cusworth J considered it appropriate to err in favour of the payee and determined a global maintenance figure of £15,000 pcm together with agreed utilities.

Legal services payment order

In respect of the LSPO application, the parties’ positions ‘could not be further apart’; [20]. Cusworth J again noted that the guiding consideration was that of reasonableness, with determination governed by ss 22ZA and 22ZB of the Matrimonial Causes Act 1973 and consideration given to the decision of Mostyn J in Rubin v Rubin [2014] EWHC 611 (Fam) at [13] that:

‘(iv) the court cannot make an order unless it is satisfied that without the payment the applicant would not reasonably be able to obtain appropriate legal services … It is not a surrogate inter partes costs jurisdiction.’

Cusworth J considered that W’s costs were ‘frankly alarming’, with predicted costs of £501,654.00 to take the financial remedy proceedings to FDR and engage in children’s mediation; [27]. H’s position was to offer nothing on account of incurred costs and a total of £20,000.00 in LSPO funding, matching his solicitors’ estimate to first appointment. The only evidence of a source of liquid funds was the remaining £338,229.00 from the Seller Note. Neither party’s position was reasonable; [31].

Cusworth J considered R v R [2021] EWHC 195 (Fam) and LKH v TQA AL Z (Interim Maintenance and Costs Funding) [2018] EWHC 1214 (Fam) in striking the balance of reasonableness and ensuring future provision is not affected by outstanding costs.

The result of the judge’s exercise of ‘caution and realism’ per Currey v Currey (No 2) [2006] EWCA Civ 1338 was an LSPO award of £160,000.00 of which £100,000.00 was attributed to incurred costs. Cusworth J recognised the award as being ‘outside of what is affordable at this time’ but enabled proper representation for W; [36].