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Maintenance Pending Suit Revisited

Alexander Chandler of 1 King’s Bench Walk, Temple, London revisits and updates an article originally published in February 2010 in light of changes brought about by the Family Procedure Rules 2010.

Alexander Chandler, barrister, 1 King's Bench Walk

Under section 22 of the Matrimonial Causes Act 1973,

"...on a petition of divorce, nullity of marriage or judicial separation, the court may order one spouse to pay maintenance 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 [i.e. pronouncement of decree absolute] as the court thinks reasonable".

These last words (" the court thinks reasonable") confer on the court a discretion "…as wide and unfettered discretion as can be imagined" (Offord v Offord (1982) 3 FLR 309 at 312). The corresponding power for civil partners ("maintenance pending outcome") is found at Schedule 5, Part 8 to the Civil Partnership Act 2004.

The provisions of s. 22 MCA and Sch. 5, Part 8 CPA provide the only routes for a spouse or civil partner to seek interim support. An application pursuant to the court's inheritance jurisdiction or ancillary to a freezing order is not possible (see Re M (Freezing Order) [2006] 1 FLR 103, per Stephen Bellamy QC at [35] and [39]).

The focus of an application for MPS is generally to meet an applicant's immediate needs or to 'hold the line' until a more detailed examination is possible. In Moore v Moore [2009] EWCA Civ 1427 Coleridge J remarked on the difference in approach between interim and final orders for maintenance:

"[22] ... An order for maintenance pending suit is, as Bodey J observed, 'a creature different in form and substance from substantive orders made upon the making of decree nisi'. It is designed to deal with short-term cash flow problems, which arise during divorce proceedings. Its calculation is sometimes somewhat rough and ready, as financial information is frequently in short supply at the early stage of the proceedings."

Procedure under the Family Procedure Rules 2010 ("FPR")
An application for MPS should be issued using the Part 18 claim (FPR 9.7(2)) and must attach

(1) a draft order (FPR 18.7(2)).

(2) written evidence in support where the application is made before Form E has been filed. This should explain: "...(a) why the order is necessary and (b) giving up to date information about that party's financial circumstances " (FPR 9.7(3)).

Where a respondent has not yet filed Form E, he must "file a statement of his least 7 days before the court is to deal with the application" (FPR 9.7(4)).

Under FPR Part 18, an interim application such as MPS must be served " least 14 days... before the court is to deal with the application" (FPR 18.8(1)). Strict compliance with this rule may be excused where the overriding objective requires (FPR 1.1) by reference to the court's power to shorten the time for compliance at FPR 4.1(3).

The hearing
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. There will generally not be sufficient time to take oral evidence (cf. FPR 22.7).

Applications for MPS are generally (and optimistically) listed for one hour. This is rarely adequate to deal with often detailed submissions, judgment and costs.  Unless the application is made at High Court level, a one hour time estimate falls outside the requirements of FPR PD27A to prepare a court bundle (see FPR PD27A, para. 2.4). This can leave the court in an unenviable position, attempting to resolve highly contentious issues without the assistance of a paginated bundle or clear guidance as to the appropriate quantum.

It is suggested that an applicant should consider either (a) providing for a longer time estimate of 1 ½ hours or (b) prepare a short core bundle even though it is not strictly required.

Listing alongside other hearings
Provided the court has sufficient time to entertain both applications, there is no reason in principle why a FDR should not be listed alongside a First Appointment.

However, the difficulties involved in hearing MPS alongside a FDR can be insuperable. Under FPR 9.17(2) a judge who has conducted a FDR can thereafter deal with a further FDR or a directions order – but not an application for MPS. While it is technically possible for a judge to hear a MPS application before the FDR, it is almost invariably a bad idea to deal with the contentious issue of interim maintenance and then expect the parties to enter into a FDR in the required spirit of compromise.

Applicable principles
In TL v ML and Others [2005] EWHC 2860 (Fam); Nicholas Mostyn QC, (then sitting as a Deputy High Court judge) summarised a number of principles derived from the authorities:

"[123] 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) [1995] 2 FLR 45, G v G (Maintenance Pending Suit: Costs) [2002] EWHC 306 (Fam), [2003] 2 FLR 71 and M v M (Maintenance Pending Suit) [2002] EWHC 317 (Fam), [2002] 2 FLR 123:

[124] 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) [2006] EWHC 1834 (Fam); [2007] 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) [2002] EWHC 306 (Fam); [2003] 2 FLR 72, Charles J commented:

"[73] 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.

The order
An order for maintenance pending suit should 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', thereby avoiding the jurisdictional trap that MPS technically ends with the pronouncement of decree absolute. The payment may be paid by standing order (s. 1(5) Maintenance Enforcement Act 1991)7. 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 payments to a third party, e.g. that a respondent pays the mortgagees (Burton v Burton and Another [1986] 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.

Maintenance pending suit ('MPS') can be backdated as far back as the date that a petition for divorce, nullity or judicial separation was filed with the court. Where backdating is sought, it is good practice to produce a schedule showing the amounts sought together with payments received to ensure the respondent receives credit for all sums paid.

One of the most significant changes brought about by the Family Procedure Rules 2010 was to expressly exclude MPS applications from the provisions of FPR 28.3 ("Costs in financial remedy proceedings" (FPR 28.3(4)(a)). As a result:

a) the general rule that each party will bear their own costs does not apply to MPS. As a result, it is no longer the case that a party may achieve the Pyrrhic victory of an order for MPS on the basis that they meet their own costs (which may exceed the benefit of the MPS order.

b) on an application for MPS the court exercises a broad discretion to make such order as the court thinks just (FPR 28.1), sometimes described as a 'clean sheet' approach.

c) the court can take into account Calderbank letters since FPR 28.3(8) which forbids the court to admit any offer to settle other than an open offer, does not apply.

As a result, it is invariably a good idea for a respondent to send either an open offer or Calderbank offer, to provide some sort of protection costs.

Refund of MPS payments?
Where an applicant succeeds on an application for MPS but ultimately fails on jurisdiction or merits (e.g. where a respondent successfully challenges the jurisdiction of the English courts: L-K v K [2006] EWHC 153 (Fam); [2006] 2 FLR 1113)), 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 M (Maintenance Pending Suit: Enforcement: On Dismissal of Suit) [2009] 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 [68].

In summary, advisers should bear in mind the following:

a) Issue the application using the Part 18 procedure, attaching a draft order and (particularly where Forms E have not yet been exchanged) evidence in support;

b) Ensure the respondent is served at least 14 days before the hearing;

c) Consider preparing a core bundle even where the application is listed for 1 hour only;

d) Avoid listing the MPS hearing alongside a FDR;

e) Consider backdating in detail and prepare a schedule setting off payments already made;

f) Send offers – both open and Calderbanks.