MacDonald J.

See Rebekah Batt’s summary of W’s earlier LSPO and MPS applications for relevant background: DR v RH [2023] EWFC 111.

H’s applications

1. To discharge a freezing order made in respect of H’s life insurance policy;
2. For an order that he shall borrow against the life insurance policy in the sum of $492,501 and the funds be divided equally between the parties;
3. The parties be released from undertakings not in any way to dispose of, deal with or diminish the value of two bank accounts and be permitted to use the funds therein;
4. The wife vacate from the Wyoming property she is occupying and for the net rental income from that property and New York properties be divided equally between the parties;
5. To discharge MPS order requiring H to pay £18,762 per month and a sum equivalent to children’s school fees, all reasonable extras, summer tuition and university expenses;
6. To discharge the LSPO.

W’s applications

7. Adjournment and return date for the freezing order;
8. Enforcement with respect to unpaid MPS and LSPO.

The law

LSPO

Section 22ZA of the Matrimonial Causes Act 1973 (MCA), as amended, makes clear that the court may at any time in the proceedings vary an LSPO if it considers that there has been a material change of circumstances since the order was made. In deciding whether there has been a change of circumstances, the court must take account of matters set out in s 22ZB(1)(a) to (h) of the MCA as amended. NB. In Rubin v Rubin [2014] EWHC 611 (Fam), Mostyn gave comprehensive guidance on the operation of these statutory provisions.

MPS

Where court is considering the variation of an MPS order, it will consider the question of whether there has been a change of circumstances since the MPS order was granted and, if so, apply the principles applicable to the determination of an application for MPS to those changed circumstances, namely ‘reasonableness’. MacDonald J references Garner v Garner [1992]1 FLR 573, a periodical payments case, in considering whether the court can revisit its previous conclusion as to the extent of liquid assets available to the husband.

NB. Per Morris v Morris [2017] 1 WLR 554, the Court of Appeal held that on an application to vary the court had to conduct an exercise proportionate to the requirements of the case.

Freezing injunction

Correct approach is set out by Andrews LJ in Les Ambassadeurs Club Ltd v Yu [2022] 4 WLR 1. Andrews LJ made clear the focus should be whether the evidence before the court demonstrates objectively a real risk of unjustified dissipation, which is sufficient in all the circumstances to render it just and convenient to grant a freezing injunction.

Analysis

H made no appeal of the court’s findings in June 2023, with respect to the extent of H’s liquid assets as including his investments. No updating disclosure has been provided by H to support the narrative of spending from his accounts.

W has not pursued rental accommodation in London, contrary to her June 2023 representations that renting in London was a firm requirement. Instead, W unilaterally decided to move into a matrimonial property previously producing a rental income. NB. W continues to make the unparticularised assertion that H has undisclosed assets.

Evidence. The court can proceed at an interim stage on the basis of less comprehensive evidence than that which would be available at the final hearing. However, it should only proceed so far as is necessary to ensure the position of the parties in the interim. The court should not, at this stage, engage in a comprehensive restricting of the financial position between the parties in absence of updating disclosure and in absence of the court being able, at an interim stage, to investigate and determine issues such as non-disclosure of assets.

Held

LSPO

MacDonald J not satisfied there has been a change of circumstance to justify the court altering the conclusion it reached in June 2023. Without the funds, W would not reasonably be able to obtain legal services up to and including the final hearing.

MPS

MacDonald J not satisfied circumstances have changed since June 2023 for the court to now conclude that W can no longer establish reasonable need for MPS. However, MacDonald J is satisfied that there has been a change of circumstances justifying the revisiting of the quantum of the order. This is due to W’s decision to move into a rental property in Wyoming rather than take up a rental property in London. £7,000 to be removed from the MPS payments to reflect this.

Freezing order

MacDonald J is satisfied that the husband will have significantly reduced sums available to him, a significant portion of which have been spent on meeting his obligations under the LSPO and MPS order. The husband is permitted to borrow against the policy to satisfy his continued obligations under the LSPO and MPS order as varied and to meet a portion of his own expenses and legal expenses ahead of final hearing.

Undertakings

There are limitations placed upon the court by this being an interim hearing and, in particular, the incomplete nature of the evidence. MacDonald J is not satisfied that the court should go further and implement the release of undertakings with respect to the bank accounts, for an order the wife vacate the property in Wyoming and for the rental income of the Wyoming property/properties in New York be divided equally between parties to discharge MPS and LSPO.

Non-disclosure

A definitive determination of W’s allegation of non-disclosure is beyond the scope of an interim hearing.