In Re A and Z [2026] EWFC 64, handed down on 18 March 2026, the Family Court considered email service of divorce papers on a spouse in the USA, maintenance pending suit and a legal services payment order.
Key facts
- Who: Spouses in divorce and financial remedy proceedings in England and Wales where the other spouse lives abroad and a rival case has been started overseas.
- From: 18 March 2026 (judgment date)
- Source: A and Z: Service Out; MPS; LSPO, Re [2026] EWFC 64
In Re A and Z: Service Out; MPS; LSPO [2026] EWFC 64, Mr Justice McKendrick sat in the Family Court at the Royal Courts of Justice. He heard submissions on 16 February 2026 and gave judgment on 18 March 2026. The spouses are anonymised as A and Z.
Background
A is a European national living in England and Wales. Z is a US citizen living in the USA. They signed a pre-nuptial agreement on 29 July 2020 and married in the USA very shortly afterwards. They separated in September 2025.
A issued a divorce application in England and Wales on 6 October 2025. On 14 October 2025 a deputy district judge, on the papers and without Z being heard, allowed A to serve it on Z by email. The order gave Z seven days to apply to vary or revoke it. The same day, Z filed for divorce in a US state. Z later applied to stay the English proceedings and to set aside the service order. On 17 November 2025 A applied for maintenance pending suit (MPS) and a legal services payment order (LSPO).
The issues
The court had to deal with several matters. They included Z's request for permission to apply out of time to set aside the service order, and the application to stay the English divorce and financial proceedings. A's MPS and LSPO applications were also before the court. So was Z's request for two experts in US law, and directions towards a later hearing on whether England and Wales or the USA is the more appropriate forum.
The law on interim maintenance
Section 22 of the Matrimonial Causes Act 1973 allows the court to order maintenance pending suit: periodical payments for a spouse's maintenance, for a term beginning not earlier than the date the petition was presented and ending when the suit is determined, in such amount as the court thinks reasonable.
The judge recorded that a dispute over which country should hear the case is no bar to an MPS or LSPO order, and the parties accepted this. Citing earlier cases, he said the court must be cautious about whether to make an order and as to the amount, particularly where the order may turn out to have been made on a false premise.
On amount, the judge said the guide is the wording of the 1973 Act: reasonableness. He said he must look at both parties' resources and the lifestyle they enjoyed during the marriage, and that the pre-nuptial agreement was a relevant factor. Quoting BN v MA [2013] EWHC 4250 (Fam), he noted that, where there is a pre-nuptial agreement, the court should seek to apply its terms as closely and practically as it can, "unless the evidence of the wife in support of her application demonstrates, to a convincing standard, that she has a prospect of satisfying a court that the agreement should not be upheld."
A sought a monthly budget of £29,000 (£348,000 a year), plus continued payment of the rent on their current rented flat. A's evidence was that the pre-nuptial agreement was signed under duress the day before the wedding.
What this means for spouses in cross-border divorces
- In this case the judge recorded that a dispute over whether England and Wales or the USA should hear the divorce did not prevent an MPS or LSPO order being made, though the court approached whether to make one, and how much, with caution.
- The judge treated the pre-nuptial agreement as a relevant factor in setting interim maintenance, applying the approach in BN v MA.
Sources
- A and Z: Service Out; MPS; LSPO, Re [2026] EWFC 64, Family Court, 18 March 2026