Maintenance pending suit

Maintenance pending suit is also known and interim maintenance or interim periodical payments and reflects financial support paid by one spouse to the other. The application for maintenance is made after divorce proceedings have started and any allocated payments will continue to be made until the divorce is finalised, following the conclusion of financial remedy proceedings.

Parties will frequently consider an application for maintenance pending suit to address a genuine financial need, but an application may also be considered to redress unequal incomes following separation ( particularly if one spouse earns substantially more than the other) or as a litigation strategy. Successful applications may have a bearing on the overall litigation strategy, where and how future litigation is conducted, together with future maintenance payments. The general “no order as to costs” rules are suspended for maintenance pending suit applications, so there is a risk of paying both parties’ costs. Advice from a specialist family solicitor is crucial in ascertaining the best approach for you, if you are considering an application or one has been made against you.

When considering an application for maintenance, the Court have historically provided arbitrary awards. In Moore v Moore, the court stated that, “… maintenance pending suit… is designed to deal with short-term cash flow problems, which arise during divorce proceedings. Its calculation is sometimes somewhat rough and ready, as financial information is frequently in short supply at the early stage of the proceedings.” Although “rough and ready”, the court uses the test of reasonableness when assessing applications for maintenance pending suit.

In an attempt to provide greater certainty, the court have detailed some guidance as to the Court’s approach, given in TL v ML et al. [2005]. The approach given is:

  1. The sole criterion to be applied in determining the application is ‘reasonableness’ which is synonymous with ‘fairness’.
  2. A very important factor in determining fairness is the marital standard of living. This is not to say that the exercise is merely to replicate that standard.
  3. In every maintenance pending suit application there should be a budget which excludes capital or long term expenditure more aptly to be considered on a final hearing for the wider finances. That budget should be examined critically in every case, to exclude forensic exaggeration.
  4. Where disclosure by the paying spouse is lacking, the court should not hesitate to make robust assumptions about their ability to pay. The court is not confined to the mere say-so of the payer as to the extent of their income or resources. In such a situation, the court should err in favour of the spouse receiving the payments.
  5. 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 until the wider finances are settled, the court is justified in assuming that the third party will continue to supply the bounty.

If you wish to discuss a maintenance pending suit application with one of our specialist solicitors, contact us today on 01234 889777 for a free consultation.

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