Financial remedy: Maintenance Pending Suit – interim maintenance: Rattan v Kuwad  EWCA Civ 1
15 / 10 / 2021
Section 22 of the MCA 1973 gives the Court power to make an Order for maintenance during the course of the proceedings. It provides:
“(1) On a petition for divorce, nullity of marriage or judicial separation, the court may make an order for maintenance pending suit, that is to say, an order requiring either party to the marriage to make to the other such periodical payments for his or her maintenance and for such term, being a term beginning not earlier than the date of the presentation of the petition and ending with the date of the determination of the suit, as the court thinks reasonable.”
A Maintenance Pending Suit Order is an Order made in financial proceedings which orders one party to pay an amount to the other pending the conclusion of the proceedings. It is essentially interim maintenance paid by one party to the other to deal with short-term cash flow problems.
It is certainly always hoped that the level of interim maintenance can be agreed between parties – either directly, in mediation or with the assistance of their respective solicitors.
What is considered in the first instance when looking at interim maintenance, is each party’s monthly income from all sources, as well as each person’s reasonable outgoings. If one party has a shortfall of income over their outgoings and the other has a surplus, then the interim maintenance can go towards “plugging” this gap. Although both parties are expected to take steps to maximise their own income.
If the level of interim maintenance (or any interim maintenance at all) cannot be agreed, then it is possible for a party to make an application to the Court. Upon considering such an application, the Court look at “reasonableness” of this – which is fairly vague!
The determination of the level of interim maintenance at a Maintenance Pending Suit hearing will generally be on the basis of either oral or written submissions. Whereas at a Final Hearing, parties are also likely to be cross-examined by the other party’s legal representatives on the level of their stated outgoings.
When a Judge is considering maintenance at a Maintenance Pending Suit hearing, generally this will not be in such great detail – they simply do not have the time do so. Instead, the calculations will be more of a “broad brush” approach – and may be “rough and ready” as was stated in a previously reported case. This is because at a Maintenance Pending Suit hearing, it could be quite early on in the financial remedy process so that full financial disclosure may not have yet been exchanged or filed. The Judge would, as mentioned above, look at both parties’ incomes, as well as their stated income needs. This will focus on “immediate” needs, rather than what the receiving party would need more longer-term or for capital expenditure. This aspect is dealt with further below.
Previous case law:
A Judge in a previously reported case stated that the key principles for maintenance pending suit cases were (at that time) as follows:
“i) The sole criterion to be applied in determining the application is “reasonableness” (s22 Matrimonial Causes Act 1973), which, to my mind, is synonymous with “fairness”.
ii) 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).
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 (F v F). That budget should be examined critically in every case to exclude forensic exaggeration (F v F).
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 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.
v) 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)”.
The case of Rattan v Kuwad  EWCA Civ 1:
More recently (in the case of Rattan v Kuwad  EWCA Civ 1), the Court considered what qualifies as being an “immediate” need and “how should the court approach the determination of this question”.
The Court in that case confirmed that all of the circumstances of the particular case will determine which issues “the court will need to focus and the degree of scrutiny which will be required”. The Court however will look at the parties’ respective needs and resources and the standard of living and then look at the other particular circumstances to be considered. It was said that in the majority of cases the standard of living is unlikely to be able to be maintained in exactly the same way (post separation) as there will be, in most cases, a limited amount of resources that then won’t be able to meet the same standard of living (as that enjoyed during the marriage) across two (separated) households.
The Court further held in that case that:
“not all [interim maintenance/maintenance pending suit] budgets require critical analysis. The extent to which a budget or other relevant factors require careful analysis will depend on the circumstances of the case. I return to this below but, in summary, the wife’s budget in this case did not require any particular critical analysis; it was a straightforward list of income needs which were easily appraised.…“.
In this case as the budget was not extensive but was instead “the type of budget which will be very familiar to judges determining financial claims and which they are well placed to decide, on a broad assessment, whether they are or are not reasonable for the purposes of determining an application for maintenance pending suit. 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.
I also do not consider that the judge was right to exclude certain items from the wife’s budget as not being “immediate expenditure needs”. The word “immediate”, in this context, 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 between the parties. However, the use of this word does not mean that the court should embark on the type of exercise undertaken by the Judge in this case. The fact that some items of expenditure are not incurred every month does not mean they should be excluded for the purposes of determining what maintenance is reasonable.
The Form E requires income needs to be set out on an annual, monthly or weekly basis. They will necessarily be averaged over the relevant period. Further, given that maintenance is typically ordered to be paid monthly, it is inevitable that this will require expenditure to be averaged. This does not mean that any of those needs are to be excluded for the purposes of maintenance pending suit. As the wife pointed out in her submissions, she could not return to court when the relevant expenditure actually arose. There may be exceptional items of expenditure which need to be considered but, with all due respect, the approach taken by the Judge in this case was unrealistic and would require far too detailed an analysis. It would also be inconsistent with the broad analysis undertaken for the purposes of determining an application for maintenance pending suit”.
It was also held that not all cases required the applicant to provide a specific maintenance pending suit budget – these could be set out in the Form E and that budget used.
The Judge also confirmed that school fees can be included within income needs and can form part of an Order for maintenance pending suit.