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Please note this content was originally published in the Family Law Journal. December 2021 edition, best practice section.

When couples separate, issues can arise regarding the immediate income needs of one of the spouses and any children.

Section 22 of the Matrimonial Causes Act gives the court power to make an order for maintenance during the course of financial remedy proceedings. It is a broad statutory power, designed to enable the court to act quickly and to make an order to meet those income needs at a time when the full financial picture may not be clear. As a result, the court’s approach has been described in a number of cases as "rough and ready".

This article highlights some key factors to consider when making such an application.

Making the application

Either party to the divorce may apply. An application for maintenance pending suit is made under the Part 18 procedure (see r 9.7(1)(a) and (2) of the Family Procedure Rules 2010 ("FPR")). An application can be made during existing financial proceedings, or when starting financial proceedings.

If the application is being made before Forms E have been filed, the applicant needs to file and serve a statement in support which must explain why the order is necessary and give up-to-date information about that party’s finances (see r 9.7(3)) and the respondent must, at least seven days before the court is to deal with the application, file a statement of her / his means and serve a copy on the applicant (see r 9.7(4)).

The test

Although reported cases contain guidance in relation to how the statutory power should be exercised, the substantive requirement is simply that the order must be reasonable. This equates to "fairness" in accordance with the overarching objective in financial remedy cases, which is that the outcome should be fair.

The guidance

In TL v ML and Others (Ancillary Relief: Claim against Assets of Extended Family) [2005] EWHC 2860 (Fam), [2006] 1 FLR 1263, Nicholas Mostyn QC (as he was) provided guiding principles for the determination of these applications as follows (refering to F v F (Ancillary Relief: Substantial Assets) [1995] 2 FLR 45; G v G (Maintenance Pending Suit: Costs) [2002] EWHC 306 (Fam), [2003] 2 FLR 71; and M v M (Maintenance Pending Suit) [2002] EWHC 317 (Fam), [2002] 2 FLR 123:

  • 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".

  • 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).

  • 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).

  • 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.

  • 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).

Does there always need to be specific maintenance pending suit budget?

TL v ML states that there should be a specific maintenance pending suit budget, but in the recent Court of Appeal case of Rattan v Kuwad [2021] EWCA Civ 1, [2021] 2 FLR 817 Moylan LJ confirmed that this is not always the case. The court is required to undertake such analysis as is sufficient to be satisfied that the ultimate award is "reasonable". In that case it was not necessary for the applicant wife to provide a specific maintenance pending suit budget. Her income needs as set out in the Form E matched her needs for the purposes of her application for maintenance pending suit.

Nevertheless, in most cases, even where Forms E have been filed, it will be good practice to prepare a specific MPS budget, focusing on the applicant’s needs pending resolution of the substantive application.

Standard of living

Marital standard of living is highlighted in TL v ML as one of the key factors in determining fairness. In Rattan, Moylan LJ highlights that in the majority of cases the family’s financial resources are unlikely to be sufficient to enable the marital standard of living to be maintained for both parties. However, the parties’ separation does not of itself provide a reason for that standard of living being reduced (and neither does it, of itself, provide a reason for that standard to be increased).

Maintenance pending suit where there is a pre-nuptial agreement

Guidance was given by Mostyn J in BN v MA (maintenance pending suit: prenuptial agreement) [2013] EWHC 4250 (Fam). When adjudicating the question of interim maintenance where there has been a prenuptial agreement, the court should seek to apply the terms of the prenuptial agreement as closely and as practically as it can, unless the evidence of the financially weaker party demonstrates, to a convincing standard, that they have a likely prospect of satisfying the court that the agreement should not be upheld.

Maintenance pending suit where there is an issue regarding the court’s jurisdiction

This issue arose in the case of CC v NC (Maintenance Pending Suit) [2014] EWHC 703, [2015] 1 FLR 404, another decision of Mostyn J. The husband’s case was that the wife’s jurisdictional claim was weak and therefore the court should be cautious in what was awarded by way of maintenance pending suit. The husband relied on the decision of MET v HAT (Interim Maintenance) [2013] EWHC 4247, [2014] 2 FLR 692, another decision of Mostyn J, in which he had said that where the jurisdiction to pronounce a decree is in dispute, the court should act cautiously and that the more uncertain the court was on a provisional basis, the more cautious it should be.

In CC v NC the court considered the wife’s case regarding jurisdiction and determined that the wife had an arguable case, possibly even a strongly arguable case, and therefore the court would not act conservatively in relation to her maintenance pending suit claim by reference to that factor.

Costs

The no order principle does not apply to interim applications (see FPR, r 28.4) and therefore inter partes costs orders may be made. Calderbank offers are admissible and can be considered by the judge when determining whether to make a costs order.

If costs are sought, a statement of costs should be filed at court and on the other side at least 48 hours in advance of the hearing.

Even if successful, parties can and will be penalised if they refuse to negotiate. In the recent decision of LM v DM [2021] EWFC 28 the wife was successful in her applications and applied for her costs. However, Mostyn J determined the wife had failed to negotiate openly and reasonably. He highlighted that negotiating sensibly was particularly important in interim applications, as these applications do not involve a final determination of the issues. He penalised the wife by reducing the costs order made in her favour by 50 per cent.

If you require further information about anything covered in this briefing, please contact Sarah Hutchinson, or your usual contact at the firm on +44 (0)20 3375 7000.

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.

© Farrer & Co LLP, January 2022

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