What Is Maintenance Pending Suit And Do You Need It?

There is often an imbalance between parties in a divorce. One partner normally has a significant income and access to wealth whilst the other takes on a different role in the marriage. Maintenance Pending Suit is a court process that financially supports one spouse by ordering the other to fund their divorce. This happens after divorce proceedings have started and lasts until the divorce proceedings come to an end by way of a final judgment regarding the finances between the parties.

Britton and Time Solicitors can advise and act for you in applying for maintenance pending suit. Britton and Time Solicitors understands how to apply, what order to seek from the court, how judges exercise their discretion, as well as international considerations and the effect on applications of Regulation (EC) 4/2009 which deals with jurisdiction, the applicable law, registration or recognition and enforcement of decisions as well as cooperation in matters relating to maintenance requirements, known as the EU Maintenance Regulation. Britton and Time Solicitors can also take instructions on proceedings for interim provision under Schedule 1 to the Children Act 1989 (CA 1989) and Part III of the Matrimonial and Family Proceedings Act 1984 (MFPA 1984) (see our children section by clicking here).

Why apply for maintenance pending suit?

There are three main reasons for making an application to the family court for maintenance pending suit. These are:

  • Genuine need
  • Equalising an unfair balance of incomes
  • Litigation tactics

At Britton and Time Solicitors we see genuine need as the most common reason for applying for maintenance pending suit, particularly where one partner has no or little income, yet the other refuses to pay any maintenance that will help the poorer partner to live and maintain a suitable lifestyle. In its plainest form, it can involve the partner who provides the main source of income leaving the home and paying no maintenance at all. This leaves the other partner (usually the home maker) and children with no funds to pay for their daily bills.

In some cases, the lower paid partner can afford to live a realistic lifestyle but is trimming their budget while the wealthier partner is indulging in an extravagant lifestyle. Litigation tactics may mean setting an example at the start of the litigation. The most usual example is the lower paid partner (of a high earning and usually wealthy partner) securing a high maintenance pending suit award so that expectations are higher at the end of case.

Britton and Time Solicitors like to make maintenance pending suit applications early in proceedings and at short notice, they are usually the first contested hearings in family law disputes. Maintenance pending suit applications apply pressure on the partner who provides the main source of income. In small money cases, the wealthier partner may decide to surrender and/or negotiate because they simply cannot afford to pay the costs of fighting the maintenance pending suit application as well as the family financial dispute as well.

What to consider when starting a maintenance pending suit application?

Britton and Time Solicitors treat maintenance pending suit applications with care. It is our general practice to prepare a detailed budget and negotiate before bringing an application. Britton and Time Solicitors will give advice and guidance on how to complete a budget.

In cases where we deem there to be only a small amount of money or an average sum of money, the costs of a maintenance pending suit is likely to be disproportionate to the judgment sought. It is important to remember that a maintenance pending suit application is only a temporary measure and is likely to last for months and not years. Where there is larger sum of money, the judge may decide that the application is disproportionate. For example, in the case of BD v FD (Maintenance Pending Suit) the parties’ costs were reported as being over £90,000.

Britton and Time Solicitors can assess whether or not an application should be made. In most family disputers there is “no order as to costs” but this rule is suspended in maintenance pending suit applications, which means there is a danger of paying both parties’ legal costs if you are unsuccessful.

When to make a maintenance pending suit application?

An application for Maintenance Pending Suit may only be made in after the petition for divorce has been issued. The court fee is currently £550 to issue a divorce application however, if you are on a low income and have no savings we may be able to reduce or remove this fee.

What issues do we consider and advise on when applying for maintenance pending suit?

  1. Firstly, time estimates at court are an important consideration. Most hearings in court that deal with maintenance pending suit applications will last more than two hours. What this means for clients is that it is hard to get a quick listing in the family courts. Britton and Time Solicitors never underestimate the time required for the application to be properly heard by a judge. If a short time estimate is given to the court to obtain a quicker listing, this will almost always cause frustration with the judge and can result in an costs order made against the applicant client, especially if the case has to be adjourned after only being part-heard.
  2. Getting a listing sooner. If the court lists the hearing and it is too far ahead, Britton and Time Solicitors can advise on applying for an “expedited hearing”. However, there is a small risk that it won’t be heard, but both parties can attend the court and it is expected that some sort of concession can be reached. If the other party is going to be aggressive, the costs of a wasted hearing may be unaffordable to a client.
  3. Constructive use of court time. A maintenance pending suit application should only be made when the court’s involvement is clearly required (see the case of BD v FD, at paragraph 34 for further reading). If an application for maintenance pending suit has already been made, it is vital that the hearing is productive, for example, by agreeing a First Appointment directions if the maintenance pending suit hearing is listed before the First Appointment. In some cases we will ask the court to list both hearings together to save court time and our clients additional costs.
  4. We remind our clients that a maintenance pending suit application and financial dispute resolution appointment will not and cannot be heard at the same time. A judge at a financial dispute resolution appointment (known as an FDR) cannot hear a maintenance pending suit application or vary a maintenance pending suit order (the case of Currey v Currey [2006] provides further explanation). Britton and Time Solicitors understands the importance in not obtaining a merged listing, this is because if the judge reads any without prejudice correspondence or submissions, he or she will be prohibited from hearing the maintenance pending suit hearing, even if the maintenance pending suit is to precede the financial dispute resolution hearing.

There is no rule that maintenance pending suit awards can only be paid from earned income. In several reported cases that involve maintenance pending suit orders, the award exceeded the payer’s income. This is because there are usually substantial assets and third-party funders in the background. Some examples of this are:

CasePersonal MaintenanceLegal feesPayer’s income
F v F [1995] 2 FLR 45£360,000 a year plus rent, school fees, nanny and medical expensesNoneNot known
A v A [2001] 1 FLR 377£7,750 a month including legal costs of £4,000£4,000 included in MPS award£140,000 to £150,000 a year
M v M [2002] 2 FLR 123£330,000 a year plus school feesSilent£275,000 a year; substantial assets in the background
G v G [2003] 2 FLR 71£8,000 a month including school fees and other costs£10,000 a monthH claims he earns $120,000 a year; judge rejects this but doesn’t make alternative finding
TL v ML and others [2005] EWHC 2860 (Fam)£17,083 a month; Mostyn J upheld this, dismissing H’s appeal£5,000 a month; Mostyn J discharged thisMostyn J takes H’s income to be £83,000 a year, but acknowledges this is subject to his father’s generosity; substantial family assets in the background
Moses-Taiga v Taiga [2005] EWCA Civ 1013£25,000 a month including £15,000 a month for legal fees. Went up to £39,000 (including £25,000 a month for legal fees)£15,000 a month included in MPS award. Went up to £25,000 a monthNot known
Currey v Currey [2006] EWCA Civ 1338 £48,000 a year index-linked; Court of Appeal upheldMPS increased by £10,000 a month for the four months leading up to FDR; Court of Appeal upheldNot known
M v M (Financial Provision) [2010] EWHC 2817 (Fam)£460,000 a year£10,000 a monthNot known

What to do now?

Maintenance pending suit applications are a potential nightmare for clients and can backfire when they fail and a cost order is made in favour of the other party. If you are considering a maintenance pending suit application, then you are going to need the right solicitor to make it. We offer fixed price consultations so that you can relax and take your time when explaining your matter and requirements. Speak to Britton and Time Solicitors today by navigating to the contact us page on this website or call us on 01273 726951.