Does a new Court of Appeal judgment transform maintenance pending suits?

By Deborah Levy, consultant in the Family Law team

In my many years of practice, I've often struggled with the competing issue between making an application for interim maintenance and the cost of doing so. The decision in Rattan v Kuwad [2021] EWCA Civ 1 is timely in clarifying a number of areas in this regard which will hopefully contain the costs of making such applications and help parties and practitioners focus on realistic outcomes.

In this case, the Court of Appeal considered how a court should assess reasonable and immediate needs when faced with an application for maintenance pending suit. It's important to bear in mind that in most cases, the parties’ financial resources probably won't be sufficient to enable their standard of living to be maintained however by the same token, separation alone does not provide a reason for this to be reduced.

In her application for interim maintenance the wife had replicated the needs she had set out in her Form E, which came to just under £4,900 per month. She also sought additional sums to pay for 'essential repairs to the house such as heating, hot water, stove fan, oven' and other items, at a cost of £3,250 together with school fees in the sum of £650 per month. Lord Justice Moylan said that it is not always necessary for a separate maintenance pending suit budget to be filed over and above what is in the applicant’s Financial Statement (Form E) which certainly would cut down on costs. The court allowed the school fees element too which is also very useful to know that they can be included in maintenance pending suit budgets.

It's also extremely helpful to know that while some needs may not necessarily arise then and there, if they are budgeted for they should be considered so that the applicant does not need to return to court when the relevant expenditure actually arises before the final conclusion of an application for a Financial Remedy Order. Although I have often advised clients that they will not necessarily be awarded all of the items in their interim budget, this decision clarifying that while some items of expenditure may not be incurred every month, this doesn't mean they should be excluded for the purposes of determining what maintenance is currently reasonable.

While in this case the husband had wanted the judge to adopt what he understood to be the ‘usual approach [being] to examine a specific budget of immediate expenditure needs to deal with short-term cash flow problems’, Lord Justice Moylan said section 22 is a 'very broad statutory power which extends to the court making such order as the judge "thinks reasonable"'. He stressed that 'the particular circumstances of each case will determine on which issues the court will need to focus and the degree of scrutiny which will be required'.

Finally, I take comfort too from some of the cases which the court analysed including the cases of F v F (Maintenance Pending Suit) [1983] 4 FLR 382, in which the judge referred to the need for the court to adopt a pragmatic approach, and added that administrative expediency could not be allowed to work injustice in an individual case, and Moore v Moore [2010] 1 FLR 1413, where the judge said that the calculation of maintenance pending suit orders is sometimes somewhat rough and ready, given financial information is often in short supply at the early stage of proceedings.