HAT v LAT [2023] EWFC 16229 September 2023

Published: 03/10/2023 13:33


Peel J. Application by W for MPS and LSPO where the parties had entered into and implemented a Deed of Separation (‘the Deed’) 30 years ago. The Deed had not been converted into a court order. The parties were married for nine years and had no children. W claimed that she had no recollection of entering the Deed, despite the document bearing her signature and she instructing solicitors at the time. The Deed provided that H would pay W £702,000 on a clean break basis. W sought a needs-based award of c.£5m. By contrast, H argued that W should be held to the Deed and receive no further financial provision. H was very wealthy, whereas W had modest savings, anticipated inheritance of £35,000, £600,000 in chattels and art and her interest in a London property.

As there was no court order embodying the Deed, the judge proceeded on the assumption that there was no formal bar to the MPS and LSPO applications. Peel J referred to Rossi v Rossi wherein Mostyn J surveyed the older cases dealing with delays in initiating financial remedies claims and noted the potential for injustice caused by a lengthy delay. The distinguishing factor in this case was that H provided W with ongoing financial support in the form of housing and general subvention for an uninterrupted period of over 20 years, and this had now ceased. H sought to rely on the delay, but the judge held that W’s claim was strengthened by H’s ongoing support, such that the significance of the delay was reduced; [27].

In his judgment, delay in bringing a claim for financial remedies was not by itself a jurisdictional or procedural bar to making such claim. Whilst delay does not automatically disentitle an applicant to financial relief, ‘it will be a factor (potentially a highly material one) when weighing up the section 25 criteria’. Also, delay does not prevent the court from making interim orders. What should be carefully considered at the interim stage is whether the claim has ‘prospects of success or is so spurious that there is no justification on the merits for the making of an interim order’; [28]. Time would tell as to whether W’s claim for further financial support would succeed, but she had an arguable case, and it would be unfair to hold her too closely to the terms of the Deed.

In terms of MPS, H was ordered to pay W £8,500 pcm backdated to the date of the application. Although this was less than W’s expenditure list of £11,436 pcm, the judge held that her expenses could be pared down and W could use earnings from her job to contribute towards her expenses. It would be unfair for the financial support to cease or be significantly reduced in circumstances where W had become accustomed to receiving similar sums and had minimal liquid resources of her own to meet her needs. There was also a pressing need to hold the ring until the parties reached settlement or the court made a final decision.

LSPO was made to provide a level playing field. W’s claimed figure of £227,321 was felt to be a little overstated. £200,000 was awarded as this was reasonable. A notional reduction to reflect what would occur on a standard basis assessment was not applied as this was not an inter partes costs order where such a deduction is routinely applied.

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