Maintenance Pending Suit

Maintenance pending suit (MPS) applications are applications made for maintenance on an interim basis, and are made after the issuing of the divorce application (formerly a Petition) but before the Court ordinarily deals with a full blown financial application.

When you do not receive sufficient monies from your former husband or wife and cannot wait for the final hearing of any application to sort out your finances, you may find that an application for maintenance pending suit is of help, as they are, at least in theory, heard much earlier in time than a full financial application. However, such applications are not common, and cost considerations may mean that they become less so. If you find your financial position to be stark, then they are worth considering.

It is worth remembering that the usual presumption that each party will be responsible for their own costs does not apply to these applications, as interim applications are specifically excluded from rule 28.3 of the Family Procedure Rules which deals with costs in financial remedy cases, and as such you are able to ask the Court to make an order that your former husband or wife for costs if your application is successful.

There is, in fact, little guidance within the Matrimonial Causes Act 1973 about applications for maintenance pending suit, the only criterion being that the interim provision must be reasonable.

It is also worth noting that any order for maintenance pending suit can be retrospectively amended, so that when the Court gets to dealing with matters at a final hearing of the full financial application, it has the power to change the original order if it feels that the amount ordered to be paid was too high, or too low. 

It is possible, however, to draw some guiding principles from the various case decisions, which are as follows.

• The criterion is one of fairness (reasonableness)
• When considering what is fair, an important factor is the standard of living enjoyed during the marriage
• The court should see a budget which should be carefully examined to avoid exaggeration, or the inclusion of capital expenditure
• Where the potential payer fails to provide proper or full information as to his or her financial position, the Court should err in favour of the payee, and should not hesitate in making robust assumptions about the payers true income
• Where the payer has historically been supported by a third party (e.g. a parent) and the third party's position is either uncertain, or unknown, the Court should assume that such financial support will continue, at least up to the hearing of the full financial application.

The timing of applications for maintenance pending suit can be difficult, and careful regard has to be had as to how clear a picture of the payers income you actually have, and where in the Courts timetable your case is.

Applications for MPS can be costly due to the amount of in depth work required to properly prepare for them. The application needs to be proportionate to the potential maintenance that might be achieved.

If you wish to discuss maintenance pending suit applications, or any aspect of your finances arising from the breakdown of a relationship, or marriage, then please call us.