Fast-acting relief

District Judge Roger Bird advises on a spouse's urgent quest for money

Assume that the applicant wishes to apply for maintenance pending suit or for an interim periodical payments order.

At the risk of labouring the obvious, the first point to make is that this is an application for ancillary relief and it has to be issued as such.

Therefore, form A must be filed, and as this is going to form the basis for the substantive application all forms of relief which may be sought should be included.

A first directions appointment will then be fixed.

However, in many cases the applicant is without funds and cannot wait that long.

So what next?

Interim procedure

Rule 2.69F Family Proceedings Rules 1991 (FPR) provides the answer.

A party may apply for interim relief 'at any stage of the proceedings', and it is necessary to file a notice of application.

When it is filed, a date for a hearing will be given not less than 14 days ahead to allow for 14 days' notice (unless the court abridges the time under County Court Rules 1981 order 13 rule 4).

The notice of application must be served on the respondent with a draft of the order sought and the evidence on which the applicant relies.

When form E has been filed it will constitute the evidence, but if the application is made before form E is ready there must be a short sworn statement explaining why the order is necessary and giving all available information about the applicant's means and what is known of the respondent's means.

Not less than seven days before the hearing, the respondent must file and serve a sworn statement as to his means if form E has not yet been filed.

The court will then adjudicate on the application.

No one-fifth rule

Advocates sometimes still argue that the 'one-fifth rule' applies to applications for maintenance pending suit and interim periodical payments - that is, the maximum award for the applicant should be one-fifth of the joint incomes.

Even if this principle was followed in the past, it certainly is not valid today.

The court will adopt normal principles using the factors under section 25 of the Matrimonial Causes Act 1973 (MCA).

However, it is true to say that, because the finances of the parties may be in a confused state and any order is intended to be temporary only, the court will probably have to adopt a somewhat broad-brush approach.

CSA v court

Owing to the Child Support Act 1991 (CSA), an application may not be made specifically for children (unless they are step-children or fall within one of the other exceptions in the Act).

However, it is quite proper to include within the applicant's application the cost of maintaining children on a Connell or Segal basis, that is it has not yet been possible to obtain a CSA maintenance calculation and the order will be reduced pro tanto by any subsequent maintenance calculation made by the agency.

But such an order can only be made where the applicant herself has a genuine right to relief in her own right (see Dorney-Kingdom v Dorney-Kingdom [2000] 2 FLR 855 CA).

Interim lump sum

Although the court may not make an order for an interim lump sum as such, it is worth remembering section 23(3) of the MCA which provides that, without prejudice to the general rule, the court may make an order for a lump sum in favour of a party for the purpose of enabling that party to meet any liabilities or expenses reasonably incurred in maintaining her or any child of the family, before making an application for an order under section 23.

What this seems to mean is that, in place of or in addition to a periodical order, the court may order a 'one-off' payment for a lump sum to meet some urgent need.

This would not affect any subsequent application for a proper lump sum using all the normal section 25 criteria.

Interim orders may, in certain circumstances, provide for payments of sums on account of legal costs.

One of the problems of parties to matrimonial proceedings, particularly wives, is that they may be ineligible for public funding because of some modest accumulation of capital but have insufficient resources to pursue their rights against their spouse.

This is made more acute when the spouse is wealthy, litigious or obstructive.

To some extent this difficulty has been overcome by the decision of Mr Justice Holman in A v A (Maintenance Pending Suit: Provision of Legal fees) [2001] 1FLR 377.

The judge ordered maintenance pending suit to include 4,000 per month towards legal costs, backdated to the discharge of the wife's legal aid certificate.

He said that the costs of the matrimonial proceedings were not in a different category from other expenses; in fact they were the wife's most urgent and pressing need.

There was no authority excluding such an element as a matter of law.

One must emphasise, as did the judge, that the court should be cautious in including such a costs element in an order, and it is obviously significant that in this case the husband was extremely wealthy and the combined costs exceeded 350,000.

Nevertheless, this is a useful case to keep in mind for the appropriate moment.

Variation - fast track

The procedure as to interim orders can provide a way to dispose of the simpler variation applications.

A frequently heard criticism of the current procedure is that it is too cumbersome to deal with simple variations, and that it really is not necessary to file forms E, etcetera.

There are, of course, many cases where form E, containing details of capital, will be highly relevant on a variation application.

But, dealing with the criticism at its face value, the solution is to issue form A and then immediately issue an interim application supported by a sworn statement.

The application would then be listed well before the forms E or first appointment and, if it really were simple, would be disposed of there and then.

CSA ousting - the latest

In a previous article (see [2002] Gazette, 11 April, 37), I was rash enough to say that 'the better view' was that the amendment to the Child Support Act, which restricted the ousting of the agency's jurisdiction to one year if a court order was made after 5 April 2002, had been implemented and that the new provisions did apply from that date even though the new formula was on hold.

It has now become clear that this is not the better view at all; it now seems that part of the new system is also on hold and that, for the time being, a consent order will continue to prevent an application under section 4 of the Act.

I apologise for any confusion caused by this overconfident prediction.

District Judge Roger Bird sits at Bristol Combined Court Centre