A case reported over the weekend, Met v Hat, raised the issue of maintenance pending suit. I don’t propose to discuss that case, but thought it might be appropriate to say a few words about maintenance pending suit generally, especially as it seems quite often to be misunderstood.
What is maintenance pending suit? Well, as the name suggests it is temporary maintenance for one spouse, payable by the other spouse for the duration of the divorce /nullity/ judicial separation proceedings. Once those proceedings come to an end, so will the maintenance pending suit (although it will usually by then have been replaced by a final maintenance order).
The idea is that the maintenance pending suit provides temporary financial support for the receiving spouse, until such time as the court can look at the entire financial or property settlement in detail, and make final, long-term orders.
Obviously, this means that the court does not have time to look at all of the factors relevant to the financial or property settlement, in the way that it would have to when considering final orders. In fact, parliament only put one restriction upon the court: that it could only make such order as it thinks reasonable.
That isn’t particularly helpful, but the courts have themselves formulated a number of principles to be applied when considering a maintenance pending suit application. By coincidence, those principles were listed by Nicholas Mostyn QC, the same judge that presided over Met v Hat, in TL v ML and Others.
Firstly, he took ‘reasonableness’ to mean the same thing as ‘fairness’. In other words, the maintenance pending suit order should be fair, both to the payer and to the recipient of the maintenance.
Secondly, a ‘very important factor’ in determining fairness is the standard of living enjoyed by the family. This is not to say that the order should ensure that that standard is maintained (this will often not be possible, as the income of the payer may not be sufficient to do this), but obviously what would be ‘fair’ for a wealthy spouse to pay would not be fair for a poorer spouse to pay.
Thirdly, in every maintenance pending suit application there should be a specific ‘maintenance pending suit budget’, which excludes capital or long term expenditure that would be more aptly to be considered when the court decides upon final orders. Maintenance pending suit is, after all, only intended to be temporary.
Fourthly, there may obviously be cases where the payer has been less than forthcoming about their ability to pay maintenance pending suit. By its nature, maintenance pending suit is usually required urgently, and the court does not therefore have time to ensure that the payer makes proper disclosure of their means. Accordingly, in such cases the court is entitled to ‘make robust assumptions’ about the payer’s ability to pay, instead of merely relying upon what the payer says.
Finally, there may be cases where the payer has historically been supported by a third party, for example a family member. As can be imagined, the payer will often claim that that such support has ended. However, where the position of the third party is unclear the court is justified in assuming that they will continue to pay that support, at least until the final hearing.
Clearly, the law relating to maintenance pending suit is rather different from other forms of financial order. Accordingly, if you wish to apply for it you would be well advised to seek the advice of a specialist family lawyer.