My ex has cut me off during divorce6 May 2022 | Lisa Pepper
Unfortunately, it is far too common that when a client says it’s over, their spouse with the “purse strings” cuts them off financially. This may mean cutting payments to a joint or sole account, or refusing to pay the mortgage or school fees.
Leading London divorce lawyer, Lisa Pepper, looks at two recent cases and the guidance provided by the Judges.
First, to clarify some definitions:
- Maintenance Pending Suit is a maintenance order the court can make once a divorce has started (but not concluded).
- Pending Suit means pending conditional order on divorce (what was Decree Absolute).
- Interim maintenance is whether the court also orders (as is the norm) that maintenance continues beyond the Suit i.e. even if conditional order/Decree Absolute is pronounced by the court.
In this way the maintenance continues until a financial settlement is reached and implemented – such settlement being recorded in a Financial Remedy Order by the Court. The maintenance is also frequently referred to as periodical payments. They are paid monthly, and any arrears are usually paid in a lump sum.
Two recent cases, one of the Court of Appeal (Rattan v Kuwad), and one of the Family High Court (Baker v Baker), have provided helpful guidance on these Court Applications.
Rattan v Kuwad
In Rattan v Kuwad, Lord Justice Moylan made the point that the order must be reasonable. This equates to fairness. The key factors are the parties needs and resources; and the marital standard of living, although with regards to the latter it is accepted that in most cases the marital standard of living may not be able to be maintenance for both spouses and the children. It is designed to address short-term cash-flow problems and has been described as “rough and ready” in case law. LJ Moylan said the following principles apply:
(i) The sole criterion to be applied in determining the application is ‘reasonableness’ (s.22 of the Matrimonial Causes Act 1973), which, to my mind, is synonymous with ‘fairness’.
(ii) A very important factor in determining fairness is the marital standard of living (F v F). This is not to say that the exercise is merely to replicate that standard (M v M).
(iii) In every maintenance pending suit application there should be a specific maintenance pending suit budget which excludes capital or long-term expenditure, more aptly to be considered on a final hearing (F v F). That budget should be examined critically in every case to exclude forensic exaggeration (F v F).
(iv) Where the affidavit or Form E disclosure by the payer is obviously deficient, the court should not hesitate to make robust assumptions about his ability to pay. The court is not confined to the mere say-so of the payer as to the extent of his income or resources (G v G, M v M). In such a situation, the court should err in favour of the payee.
(v) Where the paying party has historically been supported through the bounty of an outsider, and where the payer is asserting that the bounty had been curtailed, but where the position of the outsider is ambiguous or unclear, then the court is justified in assuming that the third party will continue to supply the bounty, at least until final trial (M v M).”
LJ Moylan went on to make some further interesting points:
- Items of expenditure that are not incurred every month do not necessarily have to be excluded for the purpose of determining what maintenance is reasonable; and
- School fees can be included.
Turning to Baker v Baker, Mr Justice Mostyn decided that the husband had some “serious questions” to answer with regards to his financial disclosure, and ordered that the husband’s Replies to Questionnaire be exhibited to an affidavit and sworn to be true; “in this way the husband will know that if it is subsequently shown that he has deliberately given false answers, then he will potentially face a charge or perjury for which the maximum sanction is seven years’ imprisonment, in contrast to the maximum sanction for making a false declaration of truth on an answer to a Questionnaire, which is a mere two years’ imprisonment for contempt of court.”
Mr Justice Mostyn rejected the applicant wife’s argument that the parties separation agreement bolster’s the wife’s claim for maintenance pending suit and distinguished this case from his earlier decision in BN v MA . Mostyn J said here, “..it would be quite wrong of me to afford any kind of recognition, explicit or implicit, to the separation agreement which the wife has not chosen to enforce for six years, in advance of the final hearing. It would be wrong for any kind of pre-judgment or pre-recognition of that agreement to be afforded in these interim proceedings. In my judgment, the maintenance pending suit application should be dealt with entirely conventionally.”
The wife also argued that she should be allowed to “roll up” her rental and investment income because she was very worried about whether the overall outcome of the case would result in the husband paying off the mortgage on her home. Mr Justice Mostyn rejected that argument: “In effect, it asks me to speculate that were I to award a lump sum in the wife’s favour to redeem the mortgage I would be unable to enforce it. I am not prepared to engage in such speculations as to the effectiveness of my enforcement powers. In my judgment, the wife’s income is what it is, and it is to be treated as being available fully to meet her current needs.” He did however accept the reasonableness of the wife’s budget (being $409,836 pa) and taking into account her income and some accepted deductions (e.g. management fees, mortgage interest..) concluded that she had a shortfall of $6,500 pm. The wife was also awarded her costs, albeit marked down from £26,000 to £15,000.
So there is often something that can be done if your spouse cuts you off, but your proposals must be reasonable and take account of any income you receive.
For practitioners, it is a very fascinating area of law and requires skill in putting together a budget just as much as defending one. Both cases are important reading for matrimonial finance lawyers.
Lisa Pepper is a partner in the family department specialising in divorce and finance matters. She is also an accredited mediator. She is ranked as a leading lawyer in Chambers UK, Chambers HNW, The Legal 500, Spears HNW directory and Tatler Advisory.
To speak with Lisa or her team please call or complete the form below.
"She has a good way of talking to clients in an empathetic way and is also a highly recommended mediator."
"One of the most amiable, friendly and talented lawyers in London... she has impressed me as someone who fights my corner but also understands the importance of resolving issues without unnecessary escalation. She is calm and reassuring."
Lisa Pepper is the stand out performer of the practice. She is pragmatic and straightforward to deal with – committed to the good outcome for the family
Lisa Pepper is outstanding and highly approachable and effective. She has a lovely manner that brings out the best in clients.
Osbornes has a strong mediation team led by Lisa Pepper. Lisa is a very experienced mediator who often places clients at ease and allows them to discuss very difficult topics. She is empathetic but knows when to be more directive if the clients require.
Lisa Pepper is one of our go-to mediators. She provides a practical service, supporting clients to conclusion.
Lisa Pepper’s mediation practice is absolutely brilliant. Real value delivered with expert knowledge. Lisa is a first rate mediator.
Lisa Pepper is one of my go to mediators. Her calm, collected attitude and friendly persona allow clients to trust her and open up to her. Excellent service and top level advice.
Lisa Pepper – very down to earth and approachable.
Lisa Pepper is a talented lawyer and we regularly refer to her for mediation
"She is a phenomenal mediator. She is full of insight and is very creative in her solutions."
"She has a substantial amount of empathy which she brings to any mediation and she works extremely hard to gain the trust of people. She fully understands how complex financial disputes work and is well versed in dealing with individuals of high net worth."
Andrew secured me the best financial settlement for my claim. He is a credit to Osbornes Solicitors.
"Lisa Pepper was recommended to me as non-nonsense and able to help me with a difficult and confrontational divorce. She more than lived up to that – she was practical, collected and always available with a clear opinion and suggestions of how to move forwards. She also was open and helpful about costs and how to mitigate them"
"Mark Freedman is a very capable lawyer, renowned for not being a pushover and pushing his clients’ cases as much as he can, but will always talk sensibly about settlement. He is among the best – tenacious, good judgment and tactically aware."
"Mark Freedman is a dynamic and highly experienced family lawyer who fights extremely hard for his clients and is always in their corner, thus ensuring their loyalty and confidence. In a trial you would always want him on your side."
"Lisa Pepper is an outstanding mediator. She is very skilled and has an empathetic and professional approach which is comforting for clients. She never imposes her own view but is even handed and provides helpful guidance to clients so that they can make empowered decisions"
"Lisa Pepper has built up a very impressive mediation practice. She is very engaging and easy to relate to. She embodies mediation in the sense that she approaches her case in a very non-judgmental fashion and can quickly gain the confidence of those with whom she is mediating"
"Lisa Pepper is a brilliant mediator who produces results. She is effective at resolving matters without the need for the parties to engage in expensive and protracted litigation"
"Lisa Pepper is a fantastic mediator. She is fair, robust when she needs to be, and finds a way of facilitating agreements in the hardest of cases. Her guidance is spot on. She has an approachable and constructive mediation style"
"She has impressed me as someone who fights my corner but also understands the importance of resolving issues without unnecessary escalation. She is calm and reassuring."
"Her mediation practice is exceptional; she is also a great solicitor and has a breadth of skill which is really useful."
"He is really experienced and wise. He has a lovely manner about him and clients feel safe with him."
"Jo Wescott is top notch and widely recognised as a rising star throughout the profession. She brings a winning combination of great judgement, an immense work ethic, and a relaxed and charming way with opponents and clients alike. Someone you want on your side”
Lisa Pepper is extremely approachable and this shines through in the outcomes she achieves from mediation. She makes clients feel at ease, which enables them to feel empowered to resolve matters amicably and find a creative outcome which many mediators may have overlooked.
Lisa Pepper is building a very strong mediation practice at very competitive rates and is able to build a rapport quickly with almost anyone.
Lisa Pepper loves her work and has a very sensible head on her. That means her practice is thriving and rightly so.
Lisa Pepper is very thorough in her preparation and has super personal skills to put parties in mediation at ease
"Osbornes is pre-eminent for family law in North London. Mark Freedman is a real rainmaker. He is an excellent lawyer and has a top-notch practice"
Mark Freedman is intelligent and personable and has a good selection of high-net work cases.
"Exceptional value for money. Highly competent and reasonably priced. Mark Freedman: one of the best in the field."
"Client-focused. Ready to fight the clients’ corner, but also ready where possible to steer client from unnecessary dispute. Mark Freedman – very experienced, with good instinct for the eventual result. Clients love him and he thinks ahead and directs the client to the best result for the client."
Mark Freedman is a serious player. A fearless family law litigator, who protects his clients’ interests passionately.
Lisa Pepper – good litigator, very friendly and approachable but tough, “straight bat” with the opposition. Can steer a client deftly to settle when he should.
Breadth of knowledge and willingness to go the extra mile is what makes it stand out. Mark Freedman – devoted to his clients
Lisa Pepper is particularly recognised for her role as a mediator in complex cross-border disputes. Her practice also includes handling prenuptial agreements and issues arising from the dissolution of civil partnerships.
Mark Freedman frequently takes on high-value financial and children proceedings that involve complex tax, trust and accounting issues. Sources praise the "tenacity and common sense" he brings to challenging disputes.
"Mark is very experienced, competent, good with clients and takes a sensible approach to cases. He knows exactly what he's doing."
"Lisa Pepper is "caring and considerate of the issues behind a matter, and will speak directly if she feels clients need that advice."
"An exceptional outfit. They take on difficult cases, fight hard and win."
"The team frequently deals with cross-border estates for high–net-worth individuals."
"Mark Freedman is a real heavyweight litigator who has dealt with some very significant cases."
"Mark Freedman boxes clever, keeps his powder dry and when it comes to the end game he negotiates a really good deal."
"Mark Freedman has a specific focus on high-net-worth divorces and finance cases where there are overseas assets and trusts."
"The very personable and client-focused Lisa Pepper."
"Lisa Pepper somehow manages to get parties to settle on matters where there isn’t much hope to start out with."
"Lisa can handle the large and complicated cases but takes equal care with the smaller cases. She is a highly skilled mediator who is a consummate professional."
"Well-regarded family practice assisting clients with substantial matrimonial disputes and sensitive children proceedings."
"Mark Freedman draws acclaim for his work in high net worth divorce cases, including those involving company structures, family trusts and overseas assets."
"He never gives up. He fights for you to the end and has boundless energy."
Mark Freedman advises high-net-worth clients and knows his stuff.
Lisa Pepper is always looking for a solution and has a very sympathetic approach to clients. She is highly regarded for her collaborative law practice.
Highly regarded for his experience as a litigation and mediation expertise, Mark Freedman is tenacious and determined. Clients really feel that he is fighting their corner.
Andrew handled a very complex, 3 year legal battle for me, with a tremendous amount of patience and professionalism. He is very approachable, always kept me up to date, by phone and e-mail, and responded very quickly to my queries with excellent advice, sound strategic thinking and strong letters to put the other side under pressure. With top contacts for barristers, joint experts and mediation.
[The Family Law department] handles significant matrimonial finance cases and complex nuptial agreements. Respected for its expertise in cross-border children law matters.
Lisa Pepper deals with separation proceedings and leave to remove cases. Sources describe her as "a great person to work with: constructive, helpful and always infectiously happy.
Mark Freedman represents high net worth clients in complex financial disputes. Sources say that "he's a determined negotiator who'll always do the very best for his clients.
"Mark Freedman receives a lot of instructions from clients based abroad, often relating to complex divorce proceedings. Sources say: “His main strengths are his enthusiastic passion for the job in hand and his total dedication to his clients.”
Insights from Lisa PepperVIEW ALL
How to get a divorce
Step-by-step Guide to Getting Divorced In April 2022, new no-fault divorce rules replaced the old fault-based system in England and Wales....Read more
My ex has cut me off during divorce
Unfortunately, it is far too common that when a client says it’s over, their spouse with the “purse strings”...Read more
How the Court views loans from parents during...
A frequent issue in financial divorce cases is a loan from a spouse’s parent, often to pay legal fees,...Read more
Mediation or Arbitration: What’s best for me?
Few divorcing couples want to end up in court, which is why mediation and arbitration are faster and more effective...Read more
Divorcing couples reaching financial settlement through Private FDR
The Runaway Advantages of the Private FDR Our specialist lawyers are keen to ensure our divorcing clients achieve cost-effective outcomes...Read more
Divorce applications shut down from 31 March 2022
From last year all divorce petitions in England and Wales were to be submitted to the court using the court...Read more
Family Mediation: a cost-effective alternative to court action
Mediation is increasingly important for our clients in their efforts to resolve children and financial issues divorce. This week (17 to 21...Read more
6 cases that shape a private children dispute
Family disputes involving children can be particularly emotive, which is why our expert children lawyers work tirelessly to understand how...Read more
Who Pays Child Maintenance?
Child maintenance is regular, reliable financial support that helps towards a child’s everyday living costs. The Child Maintenance Service (...Read more
Are irreconcilable differences grounds for divorce?
If you have come across this article it may have been as a result of an online search to see...Read more
Negotiating financial settlements in divorce
Costly and acrimonious divorces: a lesson in what not to do If you’re determined to pursue your financial claims...Read more
Child arrangements for going abroad when separated
I am separated from my spouse – can I take the children abroad on holiday? The answer to this question is...Read more
Keeping social media out of divorce proceedings
We’ve recently seen the playing out on twitter and Instagram of the high-profile separation of actor Ioan Gruffudd and...Read more
I helped build my spouse’s career
What is the impact on our divorce settlement? It’s been almost two years since The Da Vinci Code author...Read more
How to speed up a divorce
6 steps to speed up the divorce process For many people, once they have made the decision that their marriage is...Read more
6 cases that shape your divorce settlement
Part of what makes our divorce lawyers experts in their field is knowing what way a judge is likely to...Read more
Child Maintenance: When is capital, income?
Reading a recent case from the Child Maintenance Tribunal, I considered it worth flagging up that the Child Maintenance Rules...Read more
Child arrangements affected by pandemic travel restrictions
International families experiencing long separation periods from children As pandemic restrictions continue to limit overseas travel, increasing numbers of separated...Read more
Divorce in your 60s – The Financial Implications
How common is a divorce in your 60s? The latest divorce figures from the Office of National Statistics (ONS) show...Read more
Financial responsibilities of father on divorce
What are the financial responsibilities of a father on divorce? The period drama Bridgerton, the runaway success of the winter,...Read more
Contesting a prenuptial agreement
Kanye West and Kim Kardashian are getting a divorce after nearly seven years of marriage. According to reports, Kim filed...Read more
Welfare of Child Remains Priority for Courts In...
If press reports are to be believed, the Kim Kardashian /Kanye West split will not lead to a custody battle...Read more
When can you claim PPR Relief on more...
Family lawyers are familiar with ‘Mesher Orders‘ where the court orders that as part of the financial settlement on divorce,...Read more
5 top tips to finding the best London divorce...
Finding the right lawyer to advise you on one of the most traumatic changes in your life, is a serious...Read more