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Maintenance Pending Suit in light of Rattan v Kuwad (2021)

Separation is often an uncertain time for parties to a marriage, particularly where the parties’ respective financial positions are likely to be impacted as a result.

A particular area of concern is where one party requires financial support in the period between the separation and the conclusion of the divorce (in the case of a marriage) or dissolution (in the case of civil partnerships). Maintenance Pending Suit is an option open to a party in these circumstances.

What is Maintenance Pending Suit (MPS)?

MPS allows the court to order one party to financial proceedings to pay maintenance to the other until the divorce or dissolution and associated financial matters are finalised. It is an interim arrangement to allow a party to support themselves financially whilst the proceedings are ongoing. MPS is not intended to cover legal fees associated with the separation.

It is not uncommon for a financially stronger party to be unwilling to provide financial support to their spouse or civil partner following a separation. This may lead the financially weaker party to financial hardship and the inability to meet their financial obligations in the short term.

The MPS provision allows the weaker party in such circumstances to apply to the court to obtain regular interim maintenance payments from the financially stronger party.

The legal basis for MPS

MPS provision is dealt with by Section 22 of The Matrimonial Causes Act 1973 for married couples. There is an equivalent provision set out in Schedule 5 to The Civil Partnership Act 2004 in relation to Civil Partners.

MPS is not available for unmarried couples going through a separation.

MPS applications can only be made within financial remedy proceedings, so one of the parties must have already made an application or one must be made at the same time as making the MPS application.

MPS, if ordered, can be payable from the date of the divorce or dissolution petition until the date that the divorce or civil partnership is finalised by Decree Absolute or Final Dissolution Order respectively. The court has discretion as to whether to backdate payments to the date of the divorce or dissolution petition.

Under the MPS provision, the court can only make orders for maintenance payments, and not orders of a capital nature such as the payment of a lump sum or transfer of property.

In making a decision following an MPS application, the court has discretion as to how much the interim payments should be. There is no set formula for calculating the amount of these interim payments and they are decided by the court based on what is reasonable in the circumstances of the case. Guidance on how the court should approach an MPS application is set out in case law such as TL v ML, F v F (Maintenance Pending Suit) and White v White.

The court will take into account the following when deciding whether to make an order for MPS:

  1. The income of both parties.
  2. The needs (or reasonable expenditure) of both parties. This means that both parties will need to file detailed information regarding their expenditure with the court if they have not already done so within a Form E.
  3. The standard of living during the marriage or civil partnership (although they recognise that this may not be able to be replicated following separation).
  4. The needs of any children of the marriage or civil partnership.

Rattan v Kuwad

This case was most recently heard in the Court of Appeal in December 2020 and judgment was given in January 2021 by Lord Justice Moylan.

The court considered in this case the approach that it should take to determine an application for MPS, and in particular how it should assess reasonable and immediate needs.

In this case the parties were both in their early 40’s and had two children (one from the wife’s previous relationship). This was a 10 year marriage leading to separation in March 2019.

The wife applied for MPS in July 2019 (including an order in respect of school fees), relying on the budget that was included in her Form E of £4,900 per month. There remained a shortfall in her needs of £2,800 after her income of £2,100 was deducted.

The original order of DDJ Morris in October 2019 granted the wife monthly MPS payments of £2,850.

The husband appealed. HHJ Oliver heard the appeal in January 2020. He set aside the order on the basis that DDJ Morris has not applied the law appropriately as she had failed to critically analyse the wife’s needs, and in particular, her immediate needs. HHJ Oliver said that the maintenance must be “reasonable” and “should deal with immediate expenditure needs which have to be critically examined and long term expenditure needs should be best dealt with at the final hearing”. HHJ Oliver did not determine a new monthly figure for the MPS payment, although he acknowledged that some payment should be made by the husband to the wife.

The wife then appealed the order of HHJ Oliver and the case was heard by the Court of Appeal in December 2020. The Court of Appeal made it clear that the guidance provided in previous case law, namely that the parties needs should be critically analysed and that they should be limited to those that are immediate, is only guidance and should be applied according to the circumstances of each case.

The Court of Appeal restored the decision of DDJ Morris on the basis that she had sufficiently analysed the relevant factors and had accepted the wife’s needs as reasonable.

The Court of Appeal said in this case specifically that:

  • It is not always necessary for a separate MPS budget to be filed with the court in addition to what is included in a party’s Form E if their income needs remain the same.
  • The court is required to undertake an analysis of needs as is sufficient to be satisfied that the ultimate award is reasonable. A budget does not therefore have to be critically analysed in detail in every case. In this case the Court of Appeal said that this was not an unduly complex application and that MPS could be determined justly with a succinct summary (and that a critical analysis of the wife’s budget was not necessary).
  • Needs do not have to be ‘immediate’ but anything that will arise pending the resolution of the financial dispute between the parties, and needs do not have to be expenditure that is payable every month. In this case the Court of Appeal said that it was not right to exclude certain items from the wife’s budget as not being immediate expenditure needs. Examples of these items were house insurance, car tax and a TV license.

For more information on the issues raised in this blog please do not hesitate to contact one of the team at Rayden Solicitors.

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