Financial pressure can mount up quickly in the immediate aftermath of a separation. How does a financially weaker spouse or a spouse who has depended on the other for financial support during the marriage meet his or her income needs in the period between separation and a final financial settlement?

Section 22 of the Matrimonial Causes Act, 1973 enables the court to make what’s known as an order for ‘maintenance pending suit’. The legislation explains that this is 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.’

The word ‘reasonable’ at the end of the section suggests the power of the courts to make a maintenance pending suit order is a broad one. In the 2021 case of Rattan v Kuwad discussed below this approach appears to be confirmed.

Meeting ‘short-term cash flow problems’

By their nature applications for maintenance pending suit (or ‘interim maintenance’) are usually urgent. To a degree they are a stop-gap measure intended to tide the financially weaker party over until the full financial picture is clear and a final order is made. As one judge remarked in a 2009 case on the subject such orders are designed to deal with short-term cash flow problems, and the calculations made are ‘sometimes somewhat rough and ready’. Remember that these applications are heard at the beginning of a divorce when financial information is frequently in short supply.

What is reasonable interim maintenance? Rattan v Kuwad, 2021

The 2021 case of Rattan v Kuwad provides a useful illustration of the way the courts approach cases where a spouse asks for maintenance payments before a final order.

The case was not particularly complex, and it did not involve the large sums of money sometimes associated with divorce cases heard by the Court of Appeal. The wife had initially been awarded interim maintenance of £2850 per month, an order that the husband appealed on the basis that the judge had failed to adequately scrutinise the wife’s budget. The husband argued it had included items that were not appropriate or ‘reasonable’ for interim maintenance.

Items the husband objected to included dental fees, home insurance premiums and house alarm costs. The judge in the lower court had also, according to the husband incorrectly included school fees in his maintenance pending suit order.

The husband succeeded in this appeal but the wife then appealed that decision.

Moylan J in the Court of Appeal found in favour of the wife, deciding that:

  • The only factor to be taken into account when assessing interim maintenance is ‘reasonableness’ as stated in Section 22. The power to make an order is very broad. What is reasonable may be equated to what is ‘fair’.
  • Court guidance limiting interim maintenance to ‘immediate needs’ doesn’t limit payments to items of expenditure that are only incurred on a monthly or periodic basis as the husband had argued. What is immediate and reasonable must be decided in the context of each individual case. Here for example there was no reason why school fees should not be included as part of the interim maintenance order.
  • It wasn’t necessary in an uncomplicated case like this for the wife to prepare a separate maintenance pending suit budget. (This had been suggested in previous cases). Instead if it was expedient the wife’s budget for interim maintenance could be gleaned from her Form E without her needing to go to additional expense of preparing a separate budget. (Form E is the form used to make full financial disclosure in the main financial proceedings.)

Comment

A close reading of the judgment in the Rattan case highlights the leeway the courts have in these types of cases to take decisions that, above all, are practical in the circumstances. The wife for example suggested changing the mortgage over the family home from repayment to interest only. This would have the effect of reducing her income needs by £2500 a month. The husband objected saying such a change to the mortgage product would incur a penalty charge. The court however did a quick calculation and figured out that overall it would be cheaper in the short term to change the mortgage repayments to interest only. This was a decision with an eye purely on the best short-term way to alleviate a cash flow problem. The judge was not primarily looking at the best financial solution for the long term.

While such a pragmatic approach is to be welcomed it’s worth acknowledging that the Rattan case was beset with delays – both in the family court system and as a result of the way the parties managed the case. With two appeals in what was a relatively straightforward case it’s not hard to imagine how urgent the maintenance pending suit application had become by the time it reached the Court of Appeal. Moylan J’s decision was given added significance because of a substantial delay in getting a date for the final financial remedy hearing. It’s a reminder, if one were needed of the benefits of trying to agree issues like interim maintenance privately without embarking on lengthy and costly court applications. At the end of the day hearings like these only serve to distract from the key issue of reaching a final settlement.

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