The court’s approach to maintenance pending suit applications


Applications for maintenance pending suit are designed to bridge the gap between the application being issued and a final order being made, providing financial relief for the applicant and any children in the interim. In the recent case of Rattan v Kuwad [2021] EWCA Civ 1, the Court of Appeal revisited the issue of how these applications should be dealt with, including whether a critical analysis of the applicant’s needs is always required.

On the facts of the case, the wife appealed an order made by HHJ Oliver in which he allowed the husband’s appeal from a maintenance pending suit order of £2,850 per month made by DDJ Morris. The Judge had set aside the order principally on the basis that the DDJ had not undertaken any critical analysis of the wife’s immediate expenditure needs.

In allowing the wife’s appeal, Lord Justice Moylan referred to the broad statutory power given to the court under section 22 of the Matrimonial Causes Act 1973 to make an order for maintenance pending suit. This provides the court with the ability to make such order as is considered “reasonable” in meeting the immediate financial needs of the spouse and children at an early stage in proceedings when the full evidential picture might be far from certain.

LJ Moylan made it clear that not all budgets require critical analysis, where the extent to which a budget or any other relevant factors require careful analysis will depend on the facts of the case. In Rattan v Kuwad, the wife’s budget was said to be a straightforward list of income needs which were easily appraised and did not require any extensive analysis. It was the type of budget which could be determined justly with a broad assessment of the relevant factors.

On this basis, the Court of Appeal held that the DDJ had undertaken a sufficient analysis of the relevant financial factors and had reached a fair conclusion as to what level of maintenance for the applicant would be reasonable pending the final financial remedy hearing.

Accordingly, the court is only required to undertake such evidential analysis as is sufficient to be satisfied that the award made is “reasonable”. In some instances, this might require a detailed examination of the applicant’s budget, while in others, it will be more than apparent whether the listed items represent a fair guide to the applicant’s income needs.

Indeed, there may well be cases, especially those involving exceptional wealth, where a more critical analysis is necessary in determining what is reasonable. That said, the budgets of the ultra-rich are very often far removed from the list of income needs provided by applicants in the majority of cases. As such, in most maintenance pending suit applications, the court is likely 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 dealing with the applicant’s short-term cash flow problems.

Still, it is important to remember that the particular circumstances of a case will typically determine the issues on which the court will need to focus and the degree of scrutiny required. The courts’ approach, therefore, should always be tailored to the facts of the case.

Legal disclaimer

The matters contained herein are intended to be for general information purposes only. This blog does not constitute legal advice, nor is it a complete or authoritative statement of the law in England and Wales and should not be treated as such. Whilst every effort is made to ensure that the information is correct, no warranty, express or implied, is given as to its’ accuracy, and no liability is accepted for any error or omission. Before acting on any of the information contained herein, expert legal advice should always be sought.