Lauren Preedy – Senior Solicitor – Head of Divorce Team
When considering maintenance issues we need to think about short-term maintenance (the period between the breakdown and achieving a long-term financial order) and also longer term maintenance issues (whether or not there can be a clean break).
Maintenance Pending Suit
This is interim maintenance – after the divorce process has been started.
Maintenance pending suit is essentially about establishing a holding position – whilst the wider and longer-term implications of the financial settlement are considered.
The sole criterion for the making of such an order in Matrimonial Causes Act 1973, s 22 is ‘reasonableness’, which is synonymous with fairness
Case law has expanded on how a court should approach maintenance pending suit cases:
a very important factor in determining fairness is the marital standard of living, although that is not to say that the exercise is merely to replicate that standard
in every maintenance pending suit application, there should be a specific budget for that application that excludes capital or long-term expenditure, which is more apt to be considered at a final hearing
the budget should be examined critically in every case so to exclude forensic exaggeration
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where the sworn statement or Form E disclosed by the paying party is deficient, the court should not hesitate to make any robust assumptions about their ability to pay—the court is not confined by what the payer says about their resources and in such circumstances it should err in favour of the payee
where the paying party has historically been supported by an outsider, and where the payer is asserting that the third party has curtailed the financial support, but where the position is unclear or ambiguous, then the court is justified in assuming that the third party will continue to supply the financial support, at least until the final hearing
Words of Caution
Court hearings about maintenance pending suit for families with comparatively limited means can end up costing more in legal costs than the difference between what is being asked for by one of the couple and what is being offered by the other. Most solicitors will therefore
urge their clients to take a sensible approach and try and find a reasonable agreement.
Arguments about Interim Maintenance take place before a couple and their lawyers are properly able to consider the long-term financial arrangements. (Resolving the overall case will inevitably mean that short-term issues will have also been resolved).
Having a contested hearing about interim maintenance/maintenance pending suit will inevitably increase tension between the couple and there is a reasonable likelihood that this will make it harder to reach agreement about the longer-term financial arrangements. Therefore reaching sensible agreement is doubly a good idea.
General principles—spousal and civil partner periodical payments
When deciding whether a periodical payments order is appropriate, regard must be had to the checklist of factors set out in section 25 of
the Matrimonial Causes Act 1973
The most relevant factors to periodical payments are:
the income and earning capacity that each of the parties has or is likely to have in the foreseeable future and, in the case of earning capacity, any increase in that capacity that it would be reasonable to expect a party to take steps to acquire—see Practice Note: The income and earning capacity of the parties
the financial needs, obligations and responsibilities that each of the parties has or is likely to have in the foreseeable future, together with the standard of living enjoyed before the breakdown of the relationship—see Practice Note: The needs of the parties
the age of each party and the duration of the relationship—see Practice Note: The age of the parties and the length of the marriage or civil partnership, and
any physical or mental disability of either of the parties
What is a reasonable level for periodical payments?
The rules about child maintenance are clear and in most cases the level of child maintenance is determined by the calculator that is contained on the child maintenance service website.
There is no calculator for spousal maintenance.
What is appropriate (if anything) will depend upon the circumstances of the couple.
We have referred above to the criteria in section 25 of the Matrimonial Causes Act 1973.
Some factors that can be relevant include how near the couple are to retirement and the final order will address pension provision (including timing of pension income).
Is there sufficient capital to enable the spouse who might have received maintenance to receive an additional lump sum instead – which could be invested in buying an annuity or to reduce other outgoings (e.g. paying off a mortgage)
Kris Seed – Senior Chartered Legal Executive – Head of Private Law Children Team
Whether there are young children which need care and which will limit the extent to which each parent is able to work and/or to retrain so that they can maximise their earning capacity.
These can be complicated issues and it is a good idea to get legal advice at an early stage
In more complicated cases we may also advise that it would be sensible to engage the services of a financial planner – who would be able to assist in advising how assets can best be utilised.
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