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Baker v Baker [2022] EWFC 15

Mostyn J considers the approach to be taken by a court when considering an application for maintenance pending suit and in particular the issue where the paying party has not provided satisfactory disclosure or explanation of their financial position.

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The judge citing Rattan v Kuwad [2021] EWCA Civ 1 and TL v ML and Others (Ancillary Relief: Claim against Assets of Extended Family) [2006] 1 FLR 1263 held that:

• the sole dispositive criterion on an application for maintenance pending suit remains 'reasonableness'.

• The purpose of maintenance pending suit is to meet immediate or current needs, and that in assessing those needs an important factor is the marital standard of living.

• the analysis does not have to be undertaken with close numerical exactitude; a broad approach to the assessment of immediate needs is not only acceptable, but is likely to be commonplace.

• 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.

He directed that the husband should exhibit his answers to an affidavit so that if the answers are not true he is exposed to a penalty of 7 years imprisonment for perjury rather than 2 years for contempt for an untrue witness statement.

Mostyn J rejected the husband's claim that he could not afford the wife's claim of $23,000 per month (disclosure just before the hearing having added $6million to his stated fortune).

He rejected the wife's argument that that she could rely on a pre-nuptial agreement at this stage of the proceedings when the husband had not complied with it and she had not enforced it in the USA for 6 years. The relevance of the agreement would remain an issue for the final hearing. He also rejected the wife's argument that she should be able to roll up her investment income into capital because of doubts about enforceability of an award at final hearing. Her income was what it was and should be treated as fully available to meet her needs.

Mostyn J therefore awarded $6,500 pcm rather than $23,000 pcm.

Although the wife recovered much less than she claimed Mostyn J awarded her costs on a standard basis but reduced the costs payable on the standard basis on summary assessment as some of the fees were excessive.

Case summary by Nicholas O'Brien, Barrister, Coram Chambers

For full case, please see BAILII