If you have separated from your matrimonial partner and are waiting for your divorce proceedings to finalise, you can apply for interim financial support to help you get by during this period. This is called a Maintenance Pending Suit and involves one spouse being ordered to pay regular payments to the other during the time between the petition for a divorce being made and the date which the divorce is finalised, also known as a decree absolute.

Although the recent case of Rattan v Kuwad [2021] EWCA Civ 1 did not change the law, it provided clarity on the approach of the court in determining orders for Maintenance Pending Suit.

Facts of Rattan

In this case, the wife appealed a judgement made following the husband’s appeal from a maintenance pending suit order of £2,850 per month made by the judge on the first instance hearing. On the first appeal, the judge had set aside the original order on the basis that the first instance judge had not undertaken any critical analysis of the wife’s immediate expenditure needs. The Court of Appeal sided with the wife. It was held that the judge in the first instance did undertake a sufficient analysis of the financial factors and reached a fair decision as to what amount of maintenance is reasonable pending the final financial remedy hearing.

What were the principles in Rattan?

As this is not a final settlement for divorce and only an interim measure, there should be no need for a full and detailed analysis of the spouses’ financial circumstances and needs. This will be done later. Only in cases involving very high levels of wealth may the court feel the need to analyse the financial circumstances in more depth than the broad brush they would usually use. Section 22 Matrimonial Causes Act 1973 provides that these applications must be reasonable in meeting the immediate financial needs of the spouse and children, if applicable.

What does immediate mean?

Immediate needs are those which would come up between the time the divorce is filed, and when it would likely be finalised. The fact that some items of expenditure are not incurred every month does not mean they are not immediate needs, as this can be averaged over the monthly payments. Some examples of what could generally be deemed as an immediate need could be mortgage or rent payments, utility bills, costs of food and, childrens’ care or schooling. Immediate needs do not include issues of capital or long-term expenditure.

What does the court call reasonable?

Reasonable was given the meaning in the case of TL v ML to be “fairness” which is in line with the general overarching principle in financial remedy cases, where outcomes are meant to be fair for both parties. What is deemed reasonable is at the hands of the court’s discretion. There is no standard formula as every case is different. The court will generally look at your standard of living enjoyed during marriage when assessing what level of payment is reasonable.

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