Maintenance Pending Suits and the Bright Lights of Harrogate

Pot of gold coins isolated on whiteSo as the last day of the week creeps up on me again I am faced with a variety of cases here at Stowe Family Law LLP. As I work through my Friday morning I come across an application that I have, before now, yet to encounter: Maintenance Pending Suit. A maintenance pending suit is an application that forms part of larger financial proceedings. They are applications for interim maintenance. Where a couple has separated and divorce proceedings are taking place a spouse may apply for interim maintenance to support them in the period between separation and the settling of the divorce and the financial proceedings. So maintenance will be paid pending suit. S.22 of the Matrimonial Causes Act 1973 states:

“22 Maintenance pending suit.

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.”

S.38 of the Civil Partnership Act 2004 carries the same provisions as above.

In order to make an application the applicant must file for a maintenance pending suit by notice of an application using an affidavit. An affidavit is a sworn written statement from an individual. The affidavit must explain why the order is required and must also provide sufficient information about the applicant’s needs. A hearing will follow within 14 days.

When deciding whether or not to pass a maintenance pending suit the court will consider the standard of reasonableness. Is it reasonable in all the circumstances to pass the maintenance pending suit? The hearings are usually only an hour long so the court must take a wide view of the current circumstances including fairness, the standard of living during the marriage, and the budget. The budget is a specific maintenance pending budget in which the applicant sets out their current income and expenditure in order to show their current need. As a solicitor you need to ensure this budget is in no way exaggerated as if the court finds it is then they may find in favour of the other side. The budget should not take long term expenditure into account but should focus on the current day to day needs of the client. It should also exclude any capital. Both long term expenditure and capital are subjects for the main financial proceedings.

The usual presumption in all family law cases is that each party will pay their own costs under rule 28.3 of the Family Procedure Rules, however this rule does not apply to these applications and as such either party can ask the court to make an order that the unsuccessful party pays the costs of the successful party.

Maintenance pending suits, like so much of law, have their pros and cons. obviously, the main reason they exist is so that a spouse is not left destitute and unable to instruct solicitors in order to litigate through their divorce and this is a huge pro. However, the main con is that if nothing else the application process and hearing of the maintenance pending suit only serve to reduce the matrimonial pot and the money paid as part of the interim payment is non-refundable at the outcome of the financial proceedings.  In the end this reduction in the matrimonial pot affects both parties and thus an application of this kind must be consider extremely carefully. The cost of such a suit is reflected in the fact that they are rare.

In other news the end of the day is upon me already and so I am going to close down my laptop on time tonight: I have guest visiting and so it is time to show them the bright lights of Harrogate.

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