There are few reported cases in respect of maintenance pending suit applications. A recent example, however, was the appeal decision of Coleridge J in S v M [2012] All ER (D) 175 (Nov).

The wife had brought an application for maintenance pending suit against the husband. Although the husband stated that he had no income or assets of his own, and that he had never provided financial support to the wife, she relied upon the fact that there had been financial support historically provided by the husband’s father. For example, he had recently paid a significant sum to HM Revenue & Customs on the husband’s behalf. The application had originally come before a district judge with a time estimate of only 30 minutes. The district judge made an order for interim provision of over £3,000 per month.

The husband appealed, contending that the judge had failed to have proper regard for his ability to pay; any financial support was ultimately going to come from his father. The father had provided evidence that he had no intention to provide further financial support to the husband, save on a very limited basis.

Coleridge J allowed the husband’s appeal. In cases of this nature where the parties were reliant upon family support, it was necessary to establish the true historic position with regard to financial provision from the third party to the paying party. A particular problem in the current case was the unrealistic time estimate of 30 minutes given to deal with the application where there was a significant difference in the evidence of the parties.

Practical considerations

Maintenance pending suit applications have never been particularly common. As clients become increasingly aware of cost considerations, they are perhaps becoming even less common. The timing of an application for maintenance pending suit is often a crucial consideration. Unless the situation is stark – for example, a husband is failing to provide any financial support whatsoever – it can be difficult to know when is the best time to make an application for maintenance pending suit. An application before exchange of Form E can be risky, particularly when the payer’s income is not clearly known. By contrast, in more complex matters and where the husband’s true income position may only become clear after the receipt of replies to questionnaire or expert evidence, an application for maintenance pending suit may not be viewed as worthwhile where there is only a short period of time until the financial dispute resolution (FDR) hearing.

A realistic time estimate for the hearing is also essential. Although evidence is seldom, if ever, heard at a hearing of a contested maintenance pending suit application, if there are evidential issues about income, earning capacity or needs, such issues may require a time estimate of at least two hours to address.

Costs orders

It is worth remembering that due to the changes contained in rule 28.3 of the Family Procedure Rules 2010, costs in respect of maintenance pending suit applications are treated differently to costs in other financial remedy proceedings. Interim applications are excluded from the definition of ‘financial remedy proceedings’ for the purpose of rule 28.3, and therefore the presumption that each party bears their own costs does not apply to such interim applications. It is perhaps the case that the change in the rules was brought about by the fact that any financial benefit achieved by a successful maintenance pending suit application was often neutralised by the costs of bringing such an application in the first place.

Leading case law

Applications for maintenance pending suit are governed by section 22 of the Matrimonial Causes Act 1973, which provides little by way of guidance. The sole criterion under section 22 is that the interim provision must be ‘reasonable’. It is also worth noting Singer J’s decision in H v H (Financial Provision) [2009] EWHC 494 (Fam) in which he held that maintenance pending suit orders were retrospectively variable if it transpired at the substantive financial hearing that the amount originally ordered was either excessive or inadequate. In that case, the agreed order of £90,000 per annum was inadequate (even though it had been reached by consent) and that the appropriate award should have been £150,000 per annum. The shortfall during the interim period was included as part of the final lump sum order.

Harnessing the principles in F v F (ancillary relief: substantial assets) [1995] 2 FLR 45, G v G (maintenance pending suit: legal costs) [2002] 3 FCR 339 and M v M (maintenance pending suit) [2002] 2 FLR 123, Nicholas Mostyn QC (as he then was) set out the following criteria in TL v ML [2005] EWHC 2860 (Fam):

(a) The sole criterion is reasonableness under section 22. That is synonymous with fairness.(b) In determining fairness, an important factor is the marital standard of living (F v F), although that is not to say the exercise is to replicate that standard of living (M v M).(c) In every maintenance pending suit application, there should be a specific budget which excludes capital or long-term expenditure (F v F). The budget should be examined critically so as to exclude forensic exaggeration (F v F).(d) Where the statement or Form E disclosed by the paying party is deficient, the court should not hesitate to make robust assumptions about their ability to pay. The court is not confined to the say-so of the payer as to the extent of his income or resources (G v G, M v M). In such circumstances, the court should err in favour of the payee.(e) In circumstances where the paying party has historically been supported by a third party and they are asserting that the third party has curtained the financial support, but the third party’s position is ambiguous or unclear, then the court is justified in assuming that the third party will continue to supply the financial support, at least until the final hearings (M v M).

This, however, should be contrasted with the position in S v M in which the third party had made a clear statement regarding his intentions.

Andrew Newbury is head of the family, personal and financial division at Pannone