Maintenance pending suit applications

There are few reported cases in respect of maintenance pending suit. Fewer still emanate from the Court of Appeal. The Court of Appeal’s recent decision in Rattan v Kuwad [2021] EWCA Civ 1 provides a useful overview and practical guidance in respect of maintenance pending suit applications. 

Reasonableness

The sole criterion for assessing an order of maintenance pending suit under section 22 of the Matrimonial Causes Act 1973 is that such provision must be ‘as the court thinks reasonable’. Moylan LJ (pictured) in Rattan stated that the broad nature of the statutory power means the manner in which it should be exercised is contained in guidance given by the courts. In so doing, he referenced many of the leading reported maintenance pending suit cases. He described section 22 as a ‘very broad statutory power’. Moylan LJ also noted that Nicholas Mostyn QC (then sitting as a deputy High Court judge) equated ‘reasonable’ with ‘fairness’ in TL v ML [2006] 1FLR 1263.

Moylan LJ also noted that in a number of cases, including F v F (Maintenance Pending Suit) [1983] 4 FLR 382, the court’s approach has been described as ‘rough and ready’ when it came to determining maintenance pending suit applications. In practice, this means that district judges dealing with maintenance pending suit applications have to take a broad view due to administrative expediency. Maintenance pending suit orders are a creature different in form and substance from substantive orders made at the conclusion of proceedings. In addition, they are often made at an early stage in the proceedings where financial information is in short supply.

Immediate needs

Moylan LJ noted that by reference to the Red Book, the purpose of a maintenance pending suit order is to meet ‘immediate’ needs. The principal issue in the present appeal was: what needs qualify as being immediate? Moylan LJ caveated his view that the particular circumstances of each case will determine on which issues the court will need to focus and the decree of scrutiny which is required. Most significantly, he stated that the word ‘immediate’ does no more than reflect the fact that the court is concerned with an order for maintenance pending the final resolution of the financial dispute. Furthermore, the fact that some items of expenditure are not incurred every month does not mean that they should be excluded for the purposes of determining what maintenance is reasonable.

Marital standard of living

As was noted in TL v ML, the marital standard of living should be a relevant factor. Moylan LJ, however, noted that in most cases the family’s financial resources are unlikely to be sufficient to enable the marital standard of living to be maintained for both spouses. He did, however, caveat that with the generalisation that the parties’ separation does not, of itself, provide a reason for the standard of living to be reduced in the same way that it does not provide a reason for the standard to be increased.

Budgets

In F v F (ancillary relief: substantial assets) [1995] 2 FLR 45 Thorpe J highlighted the need to critically examine the applicant’s budget. In a similar vein, Mostyn in TL v ML also stated that there should be a specific maintenance pending suit budget for such applications.  

F v F was a big-money case. The present matter before the Court of Appeal was not. Moylan LJ stated that ‘the court is not required to undertake any greater “critical” analysis of a schedule of income needs than is required of any other aspect of the case. The court is required to undertake such analysis as is sufficient to be satisfied that the ultimate award is “reasonable”. In some cases this might require a detailed examination of a budget, in others, such as the present case, it will be immediately apparent whether the listed items represent a fair guide to the applicant’s income needs’.

Moylan LJ also stated that ‘it is not necessary for an applicant for maintenance pending suit to provide a list of income needs distinct from that set out in the Form E’. On this point, Moylan LJ specifically disagreed with Mostyn’s checklist in TL v ML. In TL v ML, he stated that in every maintenance pending suit application there should be a specific budget prepared by the applicant. Moylan LJ was of the view that the principles in TL v ML should be applied in the particular circumstances of each case. In the present case, a specific budget was not required.

School fees

As part of her maintenance pending suit budget, the wife had included provision for school fees. Moylan LJ stated that school fees can be included within income needs and can form part of an order for maintenance pending suit. There is no reason why they have to be sought in a separate application.

Big and small money cases

Finally, Moylan LJ drew a distinction between such cases, referring to his earlier decision in BD v FD (maintenance pending suit) [2016] 1 FLR 390. In light of the significant assets in that case, Moylan LJ had questioned the need for the wife to bring the maintenance pending suit application. The husband was paying maintenance pending suit to the wife of over £200,000 a year, yet the wife was seeking an additional sum of £70,000 to £190,000.  It was in that context that Moylan LJ had questioned whether it was appropriate for the court’s jurisdiction to be invoked.

 Andrew Newbury is a partner at Hall Brown Family Law