ANCILLARY RELIEF: C v C (Maintenance Pending Suit: Legal Costs) [2006] FLR (forthcoming)

21 DEC 2005

(Family Division; Hedley J; 21 December 2005)

Considering Moses-Taiga v Taiga [2005] EWCA Civ 1013, [2006] 1 FLR 1074 in which the Court of Appeal had approved the inclusion of legal costs in awards of maintenance pending suit provided that the case had been demonstrated to be exceptional, the judge noted that in one sense all big money cases were exceptional. The jurisdiction to include legal costs in awards of maintenance pending suit was not restricted to the situation outlined in Moses-Taiga of an applicant with no assets, unable to give security for borrowings. Thorpe LJ was giving one exceptional scenario, not defining the only circumstances in which the jurisdiction could be exercised. The facts of the instant case, involving a 15-year marriage, two minor children, a situation in which the vast bulk of the assets were under the control of one party, whose extent needed to be investigated, made this case exceptional and permitted the court to add a costs component to maintenance pending suit. The only means by which the wife could herself raise money for legal costs was further mortgaging her interest in the former matrimonial home, thereby risking her and the children's occupation of the home.

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