TY v XA (No 3) [2025] EWFC 350

Cusworth J. Wife is granted a costs order for her ‘disproportionate’ legal costs on the standard basis due to husband’s ‘normal’ litigation misconduct.

Judgment date: 29 September 2025

https://caselaw.nationalarchives.gov.uk/ewfc/2025/350

Cusworth J. Wife is granted a costs order for her ‘disproportionate’ legal costs on the standard basis due to husband’s ‘normal’ litigation misconduct.

TY (husband) and XA (wife) were married for 9 years and share two privately-educated minor children. The wife made the original financial remedies application. This is the eighth court hearing. Husband’s net wealth at trial was £17.3m. Wife’s net wealth was nil and she is not reasonably expected to be able to work substantially in the future, due to medical issues. The Husband has since remarried.

This was an application under Part III MFPA and Schedule 1 Children Act 1989, as there had been prior proceedings in Germany considering an Austrian prenuptial agreement and a German deed of separation.

At the trial, the Husband’s open offer was:

purchase the marital home, in his name, for the wife and children for £2.6m, with a mortgage, and for the wife to remain in occupation for the property until 6 months after the youngest child’s 18th birthday (1 February 2035), or when the children’s full time secondary education ceased, if later; and
child maintenance at £5,000 pcm per child, in line with the HECSA; and
school fees and extras till the end of secondary education; and
no spousal maintenance or lump sum payment for the wife.

The wife sought:

a housing fund of £4.2m to enable her to purchase a property of £3.5m; and
a lump sum of capitalised maintenance of £2.3m (i.e. £80,000 p.a. for the rest of her life); and
a lump sum of £992,955 to clear her current legal debts; and
a returnable lifetime fund of £755,607 to meet her future medical costs; and
£50,000 for a car; and
child maintenance at £3,500 pcm; and
child educational provision to the conclusion of tertiary education; and
some chattels from the parties’ former homes in Europe.

It was necessary to depart from the terms of the German deed of separation because the wife’s inability to work represented a change in circumstances.

The judge made the following order in favour of the wife:

A housing fund of nearly £2m.
Continue the current interim financial arrangements to the wife, including LSPO instalments of £28,000 per instalment, the existing child maintenance order of £42,000 per child, and the children’s private school fees.
Any additional items not on the school bill and not agreed by both parties are to be paid by the wife.
The children’s private health insurance and premium should continue to be paid by the parent who has paid it for the past 6 years.
No order as to the chattels.
These capitalised amounts to be paid, in part, by 30 November 2025, and in full by 31 May 2026.
The court may consider future targeted applications for security over the husband’s West London property if there is ongoing default on the financial orders.

The issue at this hearing was to determine how the wife’s costs were to be provided for.

Circumstances that the judge took into account:

Husband claimed that his net worth is now only £6m with current liquidity issues, but this was not accepted by the judge as there was not ‘very clear evidence in support’ and he had not applied to set aside the substantive determination.
Husband’s litigation conduct (i.e. defaulting on existing financial order obligations including the children’s school fees, filing and serving documents late and failing to provide the court with updates) was considered ‘unreasonable’, so as to consider a costs order, but not ‘unreasonable to a high degree’ or sufficiently ‘out of the norm’ so as to justify an award of indemnity costs.
Wife’s legal costs had reached £1.5m; Husband’s legal costs were only £0.5m. Despite the Husband’s conduct increasing Wife’s legal fees, the judge found that the wife’s legal fees, being three times that of the husband, were ‘disproportionately incurred’.
Husband has already been ordered to pay a costs allowance of £633,000.
The wife sought some chattels. It was impossible to determine the value of the chattels, which no longer exist, or to confirm that the judge has jurisdiction to do so in circumstances where this had already been addressed by the German deed of separation.