Maintenance Pending Suit Part I: A User’s Guide
In the first of a two part article on maintenance pending suit (MPS), Alexander Chandler of 1 King's Bench Walk deals with when, why and how an application for maintenance pending suit should be made. The second part of the article, dealing with costs allowances within MPS will be published by Family Law Week in the near future.
Alexander Chandler, barrister, 1 King's Bench Walk
A revised version of this article taking account of FPR 2010 changes is available on the site – click here
Under Section 22 of the Matrimonial Causes Act 1973, the court may order one spouse to pay maintenance to the other 'pending suit' (i.e. until decree absolute), in such sum "as the court thinks reasonable". Accordingly, the court's discretion is wide, "…as wide and unfettered discretion as can be imagined" in the time-honoured words of one High Court Judge1.
Maintenance pending suit ('MPS') may be backdated to the date that a petition for divorce, nullity or judicial separation was presented, and is available even where the jurisdiction of the English court is challenged (L-K v K  EWHC 153 (Fam);  2 FLR 1113). Equivalent provisions exist under the CPA 2004 for civil partners2 and under Sch 1 of the Children Act 19893.
The section is comprehensive in that it sets out the only way a spouse can seek interim maintenance. Interim maintenance cannot generally be obtained pursuant to the court's inherent jurisdiction or via a freezing order:
"…where Parliament has laid down a statutory procedure for determining questions of maintenance pending suit, as well as other ancillary relief matters, and that route is available to a spouse, then in my judgment the inherent powers of the court or it statutory jurisdiction to grant injunctive relief under s 37 of the 1981 Act should not be used or made available as a short cut to that payment… it will only be in the most exceptional case where urgency demands immediate payment to a spouse or children that the court would consider imposing such a term" Re M (Freezing Order)  1 FLR 103, per Stephen Bellamy QC at  and .
An application for MPS should be made by notice of application (Form D11)4. If the application pre-dates exchange of Forms E, the Applicant must file with the application a draft order and a '…short sworn statement explaining why the order is necessary and giving the necessary information about his means' (FPR r 2.69F(4)). If the Respondent has not filed Form E, he 'must' file a sworn statement 7 days before the hearing.
Where Forms E have been exchanged, sworn statements and draft orders are not required under the Rules. Nevertheless, it is recommended that a draft order should invariably be prepared together, in a complicated case, with a sworn statement.
It is sometimes overlooked that the Rules require that the MPS hearing is listed …not less than 14 days after the application" (FPR 2.69F(2)). As with all Ancillary Relief Rules, this Rule is subject to the 'overriding objective' in FPR 2.51D enabling the court to deal with cases justly. Exceptionally, it might be argued that the court's active case management might encroach on this time limit:
"…these individual rules were intended to be some sort of straitjacket precluding sensible case management. I would particularly stress the overriding objectives that govern all these rules, carefully and fully drafted in r 2.51D…" per Thorpe LJ, Crossley v Crossley  EWCA Civ 1491;  1 FLR 1467 at .
In the limited time that is generally available on an application for MPS, the court is compelled to take a "…broad view of [the] means on the one hand and income on the other and come to a rough and ready conclusion": F v F (Maintenance Pending Suit) (1983) 4 FLR 382, per Balcombe J at 385.
Applications for MPS are generally (and optimistically) listed for one hour. This is often insufficient to deal with submissions and judgment, let alone the calling of oral evidence. A one hour hearing at the county courts and PRFD also falls outside the remit of the Court Bundles Direction5 – which can leave the court in an unenviable position, attempting to resolve highly contentious issues without the assistance of a paginated bundle or clear authority as to the appropriate quantum. In a complicated case, a court bundle should generally be prepared and a longer time estimate sought (provided this does not cause inordinate delay). At the High Court, a paginated court bundle must be prepared and lodged in accordance with the Court Bundles Direction.
In the interest of saving costs, MPS can be listed alongside another hearing, such as a First Appointment (in which case the time estimate should be increased to 1 ½ hours) or FDR (which, frankly, is a recipe for disaster). MPS and FDR hearings make bad bedfellows:
i) It is not possible for a judge to first conduct a FDR first and then hear the MPS application: see FPR 2.61E(2), Myerson v Myerson  EWCA Civ 1376;  1 FLR 826;
ii) Whilst a judge may hear a contested MPS and then conduct a FDR, he may find that the effect of contested hearing has poisoned the well insofar as FDR negotiations are concerned.
In TL v ML  EWHC 2860 (Fam);  1 FLR 12636, Nicholas Mostyn QC, sitting as a Deputy High Court judge, summarised a number of principles derived from the authorities:
" The leading cases as to the principles to be applied on an application for maintenance pending suit are F v F (Ancillary Relief: Substantial Assets)  2 FLR 45, G v G (Maintenance Pending Suit: Costs)  EWHC 306 (Fam),  2 FLR 71 and M v M (Maintenance Pending Suit)  EWHC 317 (Fam),  2 FLR 123:
 From these cases I derive the following principles:
(i) The sole criterion to be applied in determining the application is 'reasonableness' (s 22 of the 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)."
Subsequently, this passage has been cited with approval by Munby J in Re G (Maintenance Pending Suit)  EWHC 1834 (Fam);  1 FLR 1674.
Must the court take the respondent at his word?
There is a limit to what the court can do in an hour. In the absence of oral evidence and cross-examination, the court cannot make findings of fact as to a party's credibility or draw inferences as to the extent of the respondent's income. Does that mean that the court is compelled to take the husband at his word?
In G v G (Maintenance Pending Suit: Costs)  EWHC 306 (Fam);  2 FLR 72, Charles J commented:
" In my judgment, important points to consider in respect of the dilemma posed when there is a dispute as to the means of the paying party are:
(a) the extent of the compliance by the paying party with his or her duty to make full and frank disclosure; and
(b) the force of the points made by the applicant in the light of the disclosure made by the paying party and the other evidence as to, for example, the lifestyle and spending of that party.
If a paying party asserts that he or she does not have the means to meet the maintenance pending suit claimed, it is trite to point out that he or she has, or should normally have, the ability to provide full and compelling disclosure to demonstrate that this is the case and thus that the assertions of the applicant that he or she is more wealthy are based on sand and have little or no reasonable prospect of success. Thus, full and frank disclosure by the paying party can avoid or minimise the unfairness or oppression to that party which would result from a court not accepting his or her assertions as to means."
Accordingly, in such a case, the respondent will be well advised to disclose fully and clearly why he cannot pay the order sought.
An order for maintenance pending suit should generally be drafted along the following lines: '…The Respondent shall pay to the Petitioner maintenance pending suit in the amount of x per month until decree absolute and thereafter interim periodical payments in the same amount'. The payment may be paid by standing order7. Unless the order provides that the payments are payable 'in advance', the payment is presumed to be in arrears.
An order for MPS can only be paid to the other spouse. The court has no jurisdiction to order, for example, that the respondent shall pay the mortgagees directly in order to maintain the family home: ": Burton v Burton and Another  2 FLR 419. However, the court may require the applicant to offer undertakings to pay outgoings such as the mortgage from the order for MPS.
The court has a discretion as to whether the MPS order should be backdated to the date of the application. Where backdating is sought, it will assist to prepare a schedule of payments received to ensure the respondent receives credit for all sums paid.
The costs of the application
In every case, the following should be considered: an application for MPS is a class of ancillary relief (FPR 1.2(1)) to which the costs rules at FPR 2.71 apply. Accordingly:
i) the general rule is that there will be no order as to costs
ii) a costs order (as opposed to a costs allowance) will only be made if justified by the respondent's misconduct, having regard to the following factors (FPR 2.71(5):
(a) any failure by a party to comply with these Rules, any order of the court or any practice direction which the court considers relevant;
(b) any open offer to settle made by a party;
(c) whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue;
(d) the manner in which a party has pursued or responded to the application or a particular allegation or issue;
(e) any other aspect of a party's conduct in relation to the proceedings which the court considers relevant; and
(f) the financial effect on the parties of any costs order.
iii) the only admissible offers are open offers. Without prejudice or Calderbank offers cannot be shown to the court at the end of the hearing.
Accordingly, MPS can be a Pyrrhic victory: an Applicant can achieve a modest level of interim support but at the greater expense of costs that are not recovered from the respondent. It is always worthwhile for an Applicant to make a sensible open offer, to maximise the prospects of achieving a costs order. Conversely, a respondent to an application for MPS is invariably well advised to make some sort of open proposal.
Refund of MPS payments?
Finally, where an applicant succeeds on an application for MPS but ultimately fails on jurisdiction or merits, can the respondent seek the refund of payments? For example, where the court subsequently determines that England is not the convenient forum, can the respondent seek orders for reimbursement of the MPS?
Following M v M8  1 FLR 790 (a case in which the order was discharged but not ab initio), it would appear highly unlikely:
"The conclusion which I draw is that, in proceedings where maintenance pending suit has actually been paid pending a decision as to jurisdiction or merits, the court has no power to order such payments to be refunded should the payee fail at trial; or if that is to put it too high, then that the court will not exercise any such power as it has unless there is some special circumstance." per Bodey J at .
In summary, advisers should bear in mind the following:
i) Ensure the MPS hearing is listed 14 days after the application;
ii) Always produce a draft order and weigh up the merits of a short sworn statement, even where Form E has been filed;
iii) Send an open proposal;
iv) Don't list the MPS hearing alongside a FDR;
v) Consider backdating and prepare a schedule setting off payments already made;
vi) Bear in mind the presumption that there will be no order for costs. Will the costs of proceeding make the MPS application a Pyrrhic victory?
1 Garden Court
12th February 2010
1 Offord v Offord (1982) 3 FLR 309, per French J at p. 312
2 See Schedule 5, Part 8 of the Civil Partnership Act 2004 which refers to the court's power to award 'maintenance pending outcome'
3 See Schedule 1, Paragraph 9 to the Children Act 1989
4 See http://www.hmcourts-service.gov.uk/courtfinder/forms/d11_1298.pdf
5 Practice Direction (Family Proceedings: Court Bundles) (Universal Practice To Be Applied In All Courts Other Than The Family Proceedings Court),  2 FLR 199, para. 2.4(a)
6 Full case name: TL v ML and Others (Ancillary Relief: Claim Against Assets Of Extended Family)  EWHC 2860 (Fam);  1 FLR 1263
7 Maintenance Enforcement Act 1991, s 1(5)
8 Full title: M v M (Maintenance Pending Suit: Enforcement: On Dismissal Of Suit)  1 FLR 790 (no Neutral Citation); recently upheld by the Court of Appeal: Moore v Moore  EWCA Civ 1427 (Unreported)