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Rattan v Kuwad [2021] EWCA Civ 1

A wife’s successful appeal from an order allowing a husband’s appeal against a maintenance pending suit order.

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The wife appealed from an order allowing the husband's appeal from a maintenance pending suit ("MPS") order. The original order of Deputy District Judge Morris ("DDJ") granted the wife monthly MPS payments of £2,850. His Honour Judge Oliver ("the Judge") set aside that order largely on the basis that the DDJ had not applied the law appropriately by failing to critically analyse the wife's needs and in particular the wife's "immediate expenditure needs". Although the Judge was sure maintenance was required, he did not feel in a position to determine the sum.


The wife was granted permission to appeal since: the appeal raised an important point of principle regarding the approach of the court in determining maintenance pending suit applications; and the wife had a real prospect of success in challenging the decision that the DDJ's assessment was flawed.
The parties were married for about ten years. They had a child, and the wife had an older child by a previous marriage. Since separating the wife had remained in the former matrimonial home ("FMH") and the children lived with her.


During the financial remedy proceedings, the wife applied for MPS to cover the shortfall in her monthly income needs (which included payment of mortgage instalments and essential repairs to the FMH) and a school fees order. At a one-day hearing in October 2019, the husband's application to adjourn was refused. The DDJ ordered that the mortgage on the FMH be changed to a fixed rate product to reduce the wife's monthly income needs by about £600. The wife's claim for around £3,000 for essential repairs to the FMH was rejected due to lack of evidence. The DDJ found the husband's case that he was not employed and could not obtain employment to be unclear and confused. Further the DDJ was sceptical of the husband's case as to the transfer of funds to India.


The husband appealed on a number of grounds which were largely related to allegations of the DDJ's deficient financial analysis.


The Judge concluded, under the Matrimonial Causes Act 1973, section 22, maintenance must be "reasonable" and "should deal with immediate expenditure needs which have to be critically examined and long-term expenditure needs should be best dealt with at the final hearing". The husband's appeal was allowed due to "three fatal errors", namely the "lack of critical analysis of the wife's" needs; the inclusion of the school fees; and the assumed reduction in the mortgage instalments of £600 per month.
The Court of Appeal noted the essential requirement of reasonableness in ordering MPS and that the order must meet "immediate needs". Noting previous judicial guidance, the Court recorded that such guidance should be applied according to the circumstances of each case and that evidence of income needs as set out in Form E may suffice. Further, critical analysis of budgets may not always be necessary.


The Court of Appeal determined that this case was not unduly complex, did not require extensive analysis and "could be determined justly with a succinct summary and consideration of the relevant factors."


The Court found the DDJ: had sufficiently analysed the relevant factors (including the parties' budgets and resources); had accepted the wife's listed needs were reasonable; and had been entitled to include a sum for school fees. Due to unexpected considerable delays in resolving the wife's substantial claim and as the Judge had not made an alternative maintenance order, the Court of Appeal restored the DDJ's order save for the provision regarding the mortgage which had already been agreed by the parties.

Case Summary by Dr Sara Hunton, Barrister, Field Court Chambers

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