News
Rattan v Kuwad [2021] EWCA Civ 1 - Maintenance Pending Suit
This case explored the concept of ‘critical analysis’, of the wife's income needs, distinguishing between levels of income/low/high value cases and ‘immediate needs’.
W was granted maintenance pending suit (mps) by the DDJ.
H succeeded on getting the order dismissed on appeal to the Circuit Judge because the DDJ’s financial analysis was said to be deficient in a number of respects. The CJ had referred to the Red book and said it is immediate expenditure needs which need to be looked at, nothing more.
The CJ also decided that the wife's application for school fees was not ‘appropriate for a maintenance pending suit application’ because they were ‘long-term expenditure items’ and should not be included as maintenance.
But in the Court of Appeal, W succeeded in having the DDJ’s order substantially restored.
W had sought mps of £4,900 pcm (although this was reduced to £2,200 during the DDJ hearing, by changing the mortgage to a fixed rate mortgage) plus an amount to cover school fees, her application being pursuant to s22 MCA[1].
The CJ set aside the DDJ’s order principally on the basis that the DDJ had ‘failed to apply the law appropriately’ in that she had not undertaken any ‘critical analysis of the wife's needs’, in particular as to which items included by the wife comprised her ‘immediate expenditure needs’. In addition, although the CJ was ‘sure there is a need for maintenance’, he did not consider that he was in a position to determine what alternative amount should be ordered.
In delivering the judgement of the CA, Moylan LJ expressed the following:-
I gave permission to appeal because I was persuaded that the appeal raised an important point of principle as to the approach which the court should take to the determination of an application for maintenance pending suit (and a reasonable prospect of success).
Mps 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’.
The broad nature of the statutory power means that the manner in which it should be exercised is contained in guidance given by the courts. This guidance does not, however, detract from the substantive requirement being only that the order must be reasonable. As (the then) Nicholas Mostyn QC (when sitting as a Deputy High Court Judge) said in TL v ML, at [124(i)], this equates to “fairness”, consistently with the overarching objective in financial remedy cases, which is that the outcome should be “fair”: White v White [2001] 1 AC 596, Lord Nicholls at p. 599G/H.
It is also clear that, as set out in the Red Book, the purpose of an order for maintenance pending suit is to meet ‘immediate’ needs.
The principal issue raised by this appeal is what needs qualify as being immediate and how should the court approach the determination of this question.
In every case the key factors are likely to be the parties' respective needs and resources and, as was also set out in TL v ML, at [124(ii)], the ‘marital standard of living’ but beyond that, the court's approach will be tailored to the facts of the particular case.
Balcombe J (as he then was) in F v F (Maintenance Pending Suit) (1983) 4 FLR 382, at p. 385 stated:
'Clearly there must be an empirical approach, since on an application for maintenance pending suit it is quite impossible practically to go into all the kinds of detail that the court can go into when dealing with the full hearing of an application for financial relief, and in the ordinary sort of case the registrars (DJ’s) who deal with these applications will have to take a broad view of means on the one hand and income on the other and come to a rough and ready conclusion.’
In TLv ML Nicholas Mostyn QC summarised the principles applicable to the determination of an application for maintenance pending suit as follows:
‘[124] From these cases I derive the following principles:
(i) The sole criterion to be applied in determining the application is 'reasonableness' (s.22 of the Matrimonial Causes Act 1973), which, to my mind, is synonymous with 'fairness'.
(ii) A very important factor in determining fairness is the marital standard of living (F v F). This is not to say that the exercise is merely to replicate that standard (M v M).
(iii) In every maintenance pending suit application there should be a specific maintenance pending suit budget which excludes capital or long-term expenditure, more aptly to be considered on a final hearing (F v F). That budget should be examined critically in every case to exclude forensic exaggeration (F v F).
(iv) Where the affidavit or Form E disclosure by the payer is obviously deficient, the court should not hesitate to make robust assumptions about his ability to pay. The court is not confined to the mere say-so of the payer as to the extent of his income or resources (G v G, M v M). In such a situation, the court should err in favour of the payee.
(v) Where the paying party has historically been supported through the bounty of an outsider, and where the payer is asserting that the bounty had been curtailed, but where the position of the outsider is ambiguous or unclear, then the court is justified in assuming that the third party will continue to supply the bounty, at least until final trial (M v M).’
Moylan LJ continues, interim hearings are an expensive exercise and, in my view, they should be pursued only when, on a broad assessment, the court's intervention is manifestly required. The jurisdiction to make an interim award is a very broad jurisdiction.
The court is required to undertake such analysis as is sufficient to be satisfied that the ultimate award is ‘reasonable’.
In some cases this might require a detailed examination of a budget, in others, such as the present case, it will be immediately apparent whether the listed items represent a fair guide to the applicant's income needs.
Regarding ‘immediate expenditure needs’, the word ‘immediate’, in this context, does no more than reflect the fact that the court is concerned with an order for maintenance pending the final resolution of the financial dispute between the parties.
The Form E requires income needs to be set out on an annual, monthly or weekly basis. They will necessarily be averaged over the relevant period. Further, given that maintenance is typically ordered to be paid monthly, it is inevitable that this will require expenditure to be averaged.
This case also demonstrates that it is not necessary for an applicant for maintenance pending suit to provide a list of income needs distinct from that set out in the Form E.
School fees can be included within income needs and can form part of an order for maintenance pending suit. There is no reason in principle why they cannot form part of an applicant's immediate income needs. There is also no reason why, as submitted by Mr Swift, they have to be sought in a separate application; they can simply be included within the one application for maintenance pending suit.
Referring to the decision of the CJ, Moylan LJ said that it would be appropriate for a court determining any appeal also to determine, if allowing the appeal, what alternative order, if any, should be made (particularly in the light of pressure on court lists and the nature of the application).
[1] On a petition for divorce, nullity of marriage or judicial separation, the court may make an order for maintenance pending suit, that is to say, an order requiring either party to the marriage to make to the other such periodical payments for his or her maintenance and for such term, being a term beginning not earlier than the date of the presentation of the petition and ending with the date of the determination of the suit, as the court thinks reasonable
On a petition for divorce, nullity of marriage or judicial separation, the court may make an order for maintenance pending suit, that is to say, an order requiring either party to the marriage to make to the other such periodical payments for his or her maintenance and for such term, being a term beginning not earlier than the date of the presentation of the petition and ending with the date of the determination of the suit, as the court thinks reasonable