Maintenance Pending Suit: Form E may be enough

January 12, 2021

Where a wife set out no more than her basic needs in Form E, it could also be used for the purposes of her maintenance pending suit (MPS) application; it was unnecessary for these purposes to provide a list of income needs distinct from that: Amita Rattan v Tushar Kuwad [2021] EWCA Civ 1 Lady Justice Macur, Moylan LJ, Lady Justice Asplin

The Court of Appeal restored the order of Deputy District Judge Morris (DDJ) from the decision of Judge Oliver who had set aside her order.

This was not an unduly complex application for MPS. The Court disagreed with the Judge because it had no doubt that the DDJ undertook a sufficient analysis of the wife’s income needs.

It was also unfortunate that the Judge simply decided to allow the husband’s appeal without making an alternative maintenance order. As the purpose of MPS was to meet current needs and, with the pressure on court lists, it would be appropriate, when allowing an appeal to determine what alternative order, if any, should be made.

Section 22 of the Matrimonial Causes Act 1973 (MCA) which gave the court power to make an order for maintenance during the course of proceedings was an extremely valuable one.

It gave the court power to make an order to meet the income needs of a spouse and the children at a time when they might be in real need of financial support following separation and the commencement of proceedings.

The broad nature of the power was contained in guidance given by the courts but it did not detract from the substantive requirement that the order must be reasonable. This equated to fairness: see TL v ML & Others (Ancillary Relief: Claim against Assets of Extended Family) [2006] 1 FLR.

The purpose of an order for MPS was to meet immediate needs. The particular circumstances in each case would determine on which issues the court needed to focus and the degree of scrutiny required.

The key factors in every case were likely to be the parties’ respective needs and resources and marital standard of living (see TL v ML & Others above). Beyond that the court’s approach would be tailored to the facts of the particular case.

As a generalisation, the parties’ separation did not, of itself, provide a reason for that standard being reduced in the same way that it did not, of itself, provide a reason for that standard to be increased.

The need for the court to adopt a pragmatic approach was described in F v F (Maintenance Pending Suit) (1983) 4 FLR 382.

In Moore v Moore, Coleridge J, sitting in the Court of Appeal and quoting from Bodley J in F v F said: “An order for maintenance pending suit is … a creature different in form and substance from substantive orders made upon the making of a decree nisi. It is designed to deal with short term cash flow problems which arise during divorce proceedings. Its calculation is sometimes somewhat rough and ready, as financial information is frequently in short supply at the early stage of the proceedings.”

The MCA was designed to provide statutory criteria sufficiently flexible to meet the circumstances of every conceivable case. See F v F (Ancillary Relief: Substantial Assets) [1995] 2 FLR 45. This was a case concerning exceptional wealth, far removed from the income needs provided by the wife in the present case.

The principles applicable to the determination of an application for MPS were set out in TL v ML (above):

The sole criterion to be applied in determining the application is “reasonableness” (s22 MCA) which … is synonymous with “fairness”.
A very important factor in determining fairness is the marital standard of living. This is not to say that the exercise was merely to replicate that standard.
In every MPS application there should be a specific MPS budget which excluded capital or long-term expenditure, more aptly to be considered on a final hearing. That budget should be examined critically in every case to exclude forensic exaggeration.
Where the affidavit or Form E disclosure by the payer was obviously deficient, the court should not hesitate to make robust assumptions about the ability to pay. The court was not confined to the mere say-so of the payer as to the extent of income or resources. The court should err in favour of the payee.
Where the paying party had historically been supported through the bounty of an outsider, and where the payer was asserting that the bounty had been curtailed, but where the position of the outsider was ambiguous or unclear, then the court was justified in assuming that the third party would continue to supply the bounty, at least until final trial.

As with all guidance, the principles had to be applied to the particular circumstances of the individual case.

In the present case, for example, it was not necessary for the wife to provide a specific MPS budget. Not all budgets required critical analysis; it would depend on the circumstances of the case.

The wife’s budget in this case was a straightforward list of income needs which were easily appraised.