Wednesday, March 24th, 2021
Interim maintenance is a type of financial support paid to one party by another whilst financial remedy proceedings within divorce are ongoing. It is also known as ‘maintenance pending suit’. Given that a fully contested financial claim can take in excess of a year to be resolved, and that separation can often have occurred a significant time before the issue of proceedings, it is often needed but not often sought.
To apply for interim maintenance, you now need to issue a separate application form to the Form A which issues the substantive financial remedy. The genuine needs for interim relief need to be evidenced and this is usually done by way of a specific statement in support setting out why an order is necessary and providing details of the budget. It would normally be sensible to have filed Form E, so this information is also available to be taken into account.
The extra costs of pursuing this separate claim need to be considered and, as with a lot of family law, the case law to provide guidance tends to only cover High Net Worth (HNW) or Ultra High Net Worth (UHNW) individuals which can be difficult to apply to middle income cases. However, the recent reported case of Rattan v Kuwad  EWCA Civ 1 has provided some more helpful guidance. The Judge, Moylan LJ, sets out that:
“This is an extremely valuable power because it enables the court 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 the parties’ separation and the commencement of proceedings. It is intended to provide the court with the ability to act expeditiously and to make an order which meets that need at an early stage of the proceedings when the evidential picture might be far from clear. It is a very broad statutory power which extends to the court making such order as the judge “thinks reasonable”.”
It was therefore confirmed by the Judge that it is down to the Judge’s discretion as to what is considered ‘reasonable’ and that it is intended to meet ‘immediate’ need. The importance of this case, in overturning a husband’s successful appeal against an interim maintenance order, was that it confirmed that a full forensic exercise is not required. The details contained in the Wife’s Form E of her income needs was considered sufficient in the context of her case.
This should be seen as encouraging to the financially weaker spouse and that these applications are not just for ‘big money’ cases but are there for any cases where a genuine need (and available resources on the other side) can be demonstrated. As ever, however, each case has to be considered on its own merits and the legal costs of the application weighed against what there is potentially to gain in maintenance until final settlement or determination. It also has to be remembered that the court can make costs orders against a party and the normal presumption that each side meets their own legal fees does not apply to a maintenance pending suit hearing. It is therefore always important to get advice on the complex area of matrimonial finance from specialist family law solicitors like those at Hanne & Co.
Elinor Feeny is a Solicitor in Hanne & Co’s Family & Divorce Law team.