Money’s too tight to mention: Maintenance Pending Suit in a COVID-19 climate

We continue our series of hot topics in family law in a COVID-19 climate. Manders Law Managing Partner, Mary-Ann Wright speaks once again to Barrister Charlotte Jewell from The 36 Group, on maintenance pending suit, an issue that family law clients are concerned about in the current crisis. If you are currently engaged in proceedings or are contemplating proceedings at this challenging time and maintenance is an issue, the information and practical guidance below will be of relevance to you.

About the Interviewee

Charlotte has been practising in family law since 1999. She specialises solely in financial remedy matters and has significant experience at first and appellate court level. She is thoroughly adept at cases involving complexities such as foreign elements, seemingly intractable disputes, third party interests, asset tracing, forensic accountancy and interlinked company structures. Charlotte is a member of both the Family Law Bar Association and Resolution.

Question

What is maintenance pending suit and why would a client seek to have it paid?

Maintenance pending suit (often called MPS) is a type of financial support paid by one spouse to the other whilst divorce proceedings are ongoing and before Decree Absolute (the final decree of divorce) is pronounced. Its purpose is to provide immediate support to the financially weaker spouse until a final order has been made. You may be in a weaker financial position, for example, because you have been at home caring for children and have traditionally been reliant upon the “breadwinner “ spouse to meet your living costs. In the midst of the pandemic you may have lost your job and income, or have been furloughed with a resultant reduction of income, meaning that you can no longer meet your financial obligations and require assistance by way of maintenance pending suit to help you do so. You may also need to fund alternative accommodation for yourself / yourself and a child, if living together with your spouse has become intolerable due to the breakdown of the marriage.

Question

“Immediate support” sounds great, but what is the reality on the ground given the effect of the pandemic on the court service?

In reality, the support will not be immediate if a determination by the court is required, given the backlogs that the court service was already dealing with prior to the pandemic and which have worsened since March 2020 post lockdown. This, coupled with the procedural requirements which we will talk about further below, means that clients should actively consider negotiation and, if necessary, an alternative dispute resolution method like Arbitration to deal with this specific issue.

Question

When can an application be made for maintenance pending suit?

Clients can apply at any stage of the proceedings, once a divorce petition has been issued.

Question

Can you explain the difference between maintenance pending suit and interim maintenance for our readers?

The language is a bit odd and the terms frequently misused, but in essence maintenance pending suit is paid before the divorce is finalised by way of Decree Absolute, whilst interim maintenance is concerned with maintenance paid after the Decree Absolute. The court’s power to make maintenance pending suit orders derives from s22 of the Matrimonial Causes Act 1973 which guides the court when determining most financial claims in divorce cases. So, on an application for maintenance pending suit the period being looked at is:

  • petition date to when a decree nisi or decree of nullity is made absolute or the date on which a decree is pronounced on a petition for judicial separation
  • a lesser period if the court thinks that is reasonable

Question

What key points will the court be concerned with on determining an application for maintenance pending suit and what therefore should clients bear in mind before embarking on such an application?

It is very important to bear in mind that the purpose of these applications is to deal with a temporary and transitional situation, for example one party may need to set up a new home. In this context the court will be concerned with:

  • Immediate income, outgoings and real needs pending resolution of the proceedings, or even just to the next hearing
  • The court will not consider long-term needs, or capital issues
  • Costs, costs, costs and we will talk further about this below

Question

What about cases where one party to the divorce lives abroad or there has been a foreign divorce?

Do not worry! All is not lost. Where there is an arguable case that one party has residence in the jurisdiction, the court will have jurisdiction to determine an application for maintenance pending suit, but beware when another Member State of the EU is first seised with divorce proceedings i.e. one party issued a divorce petition in another jurisdiction first. In those cases an order for MPS cannot be made in this jurisdiction so it is vital to take expert advice if this may be an issue in your case.

If your divorce has taken place in another jurisdiction, but you have not yet fully resolved financial matters, you may also be able to make an application for MPS in this jurisdiction. Whether or not you can do so will depend on how strong your overall case is to make an application for financial remedies here.

Question

It’s a common misconception that orders for maintenance pending suit are only available to parties to a marriage following the issue of a divorce petition. Who are these orders actually available to?

We should not forget that a spouse can claim money for looking after children as well as looking after themselves and meeting their own needs. The child related aspect of the claim can be made early on in MPS proceedings, if there has not already been a Child Maintenance Service (CMS) assessment or court directed disclosure. Where there has been no CMS assessment the court may make a ‘Segal’ order in favour of a parent that includes the amount necessary for the payee and the children as a family unit, apportioning a sum for each of the children within this. A Segal order is to be used only as a short-term order, until a CMS assessment has been applied for by either party. This means that the amount of maintenance the court orders to be paid from one spouse to the other will reduce automatically once a CMS assessment is in place, so that the paying spouse does not pay for the child twice, via the CMS and via the Court.

Question

So, what is the test and what are the vital requirements that should addressed in order to have the best chance of succeeding on an application for maintenance pending suit?

Case law helps us here. TL v ML sets out the following principles:

(i)     The sole criterion to be applied in determining these applications is “reasonableness”, which is synonymous with “fairness”.

(ii)     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.

(iii)     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. That budget should be examined critically in every case to exclude forensic exaggeration.

(iv)     Where the affidavit or Form E disclosure by the payer is obviously deficient the court should not hesitate to make robust assumptions about his/her 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. In such a situation the court should err in favour of the payee.

And last but not least … where the paying party has historically been supported through the generosity of an outsider, for example a family member, but asserts that this historic generosity has now been curtailed, but cannot provide compelling evidence to support this assertion, the court will be justified in assuming that the third party will continue to be generous, at least until final hearing.

It is true to say that interim hearings are an expensive exercise and they should not be pursued unless all efforts at proper negotiation have failed, such that the court’s intervention is required. This is even more important than ever at a time of pandemic, when the court service is suffering such severe delays and allotted court time to each case may be shorter than normal.

Clients also need to be mindful of the overriding objective, as set out at the very beginning of  the Family Procedure Rules 2010. This is a fundamental part of the procedural code to be applied which is followed by the court in order to deal with cases justly. The parties also have a duty to help the court to further the overriding objective. In particular, in relation to MPS applications the court and the parties should bear in mind the specific objectives of dealing with cases proportionately, of saving expense and of allotting an appropriate share of the court’s resources to a case.

Question

Can you please give us your top tips on what anyone considering making an application for maintenance should include in the evidence they present in support of it?

  • Set out a strict interim budget because MPS orders are retrospectively variable if it transpires at the substantive final hearing that the amount ordered was excessive or inadequate. Only include non-discretionary spend items only – so not holidays!
  • Set out earnings (and, in appropriate cases, the earning capacity) of the parties
  • Assess what the payer’s immediate income needs are, on the same non-discretionary terms
  • Identify any receipt by either party of social security benefits
  • Set out the outgoings of each party, especially in relation to the matrimonial home
  • Set out needs, including, in particular, any special needs (e.g. because of disability) of the parties or any children of the family

Question

Costs? No one likes paying them. What are the costs risks in an application for maintenance pending suit?

It is not possible to list all the rules here but:

REMEMBER: the general rule of no order as to costs, i.e. that each spouse would just pay for their own legal costs, does NOT apply to interim financial orders and the court has overall discretion as to whether to award costs; the amount of those costs; and when they are to be paid. Therefore, one spouse may be asked to pay all of, or a proportion of, the other spouse’s legal costs.

If the court decides to make an order about costs –

(a) the general rule is that the unsuccessful party will be ordered to pay the costs of the successful party; but

(b) the court may make a different order.

The Court would also take into account issues such as how a spouse conducted themselves during proceedings- i.e. whether they disclosed their finances appropriately; whether they tried to negotiate and whether they exaggerated their claim, amongst other arguments.

For an initial FREE consultation on any aspect of family law, call Manders Law on 01245 895 105 or email us here.

Note: this blog is intended to give an overview (rather than comprehensive guidance and advice) on your legal or financial position and is provided for information only. It is not an endorsement of any product or service provider.