A maintenance pending suit order is made where one spouse requires payments made from the other spouse during divorce proceedings, but before the financial outcome of the divorce is finalised. These payments are known as maintenance pending suit. They are also known as ‘interim maintenance’ or ‘interim periodical payments’.
The payments made are generally regular payments (usually monthly), and are used to assist one party with their day-to-day living expenses. A maintenance pending suit order is not designed to meet the outgoings of any children of the family, rather it is in relation to the spouse only.
How do I know if I am entitled to a maintenance pending suit order (MPS)?
In deciding whether or not MPS is appropriate, the Court will evaluate the level of the recipient’s ‘needs’.
The Court will assess the need in order to decide:
- if MPS is appropriate, and
- if so, the level of the payments.
The Court will also consider the payers’ ability to make these payments. If the Court determines that the payer does not have additional income to meet the recipient’s request, it is unlikely to order MPS.
First steps when applying for MPS
Best practice dictates that the preparation of a budget, or income needs schedule, based on essential interim outgoings rather than a comprehensive detailed budget, is the first step for the applicant (recipient of the MPS) and this is considered against both parties’ income. Ideally, an appropriate level of MPS will be negotiated with the other party. If negotiations fail, the recipient can make an application to the Court to determine whether MPS is appropriate and, if so, how much should be paid.
It is also worth considering at this stage whether an application for the other party to pay legal fees should be made alongside an MPS application (known as a Legal Services Payment Order (LSPO). You can read more about an LSPO here.
Financial implications
In “small money/average money” cases, the costs of making an application may be disproportionate to the relief that is sought, particularly because an application for MPS is only made to cover a number of months, pending the resolution of the case (where ongoing financial provision, like maintenance, will be ordered if appropriate).
The Court will assess whether or not MPS should be made using a test of reasonableness and it will look at the marital standard of living. It is not always possible for parties to maintain the same standard of living after separation, and so it is important for expectations to be managed in this regard (i.e. it is cheaper to run one household than two). If there is a question over the financial disclosure by the respondent (either being deficient or intentionally minimising their income), the Court may make fairly robust assumptions in respect of their ability to pay.
Advantages and disadvantages of MPS
The advantages of making an application and having a determination of MPS during ongoing financial remedy proceedings is that if successful, the applicant is in a less precarious financial position and then establishes a precedent within the litigation for a level of income which is required, and this will no doubt help their case in the context of the overall financial settlement. The risks are that the general concept of ‘no order as to costs’ in financial remedy proceedings is suspended for MPS applications, so there is a distinct possibility that if unsuccessful, an applicant might be ordered to pay the other party’s legal fees. The application could also increase the acrimony between the parties and require court proceedings to be instigated whereas otherwise the matter might be capable of resolution outside of court [LINK to out of court options article?]
Maintenance pending suit application
If the application is made during existing financial remedy proceedings, the maintenance pending suit application form is a general application by way of a Form D11 accompanied by a draft order. It is common practice to also include a statement which outlines the history of the parties’ finances to date, any negotiations which were made, and why the applicant requires MPS.
If MPS is sought and there are no existing financial remedy proceedings in place, you will need to issue financial remedy proceedings first. Financial proceedings can be issued using a Form A application which can be found here. The Form A will also need to be supported by a Form D11.
If the application is made within financial remedy proceedings but before financial statements (Forms E) have been filed, the applicant will also need to file and serve a statement in support (as mentioned above), to explain why the order is necessary and to give up-to-date information about the parties’ financial situation.
The respondent to the application must also file a statement in response at least seven days before the hearing if they have not already filed a Form E.
It is worth noting that MPS orders may be backdated to the date of the application for the matrimonial order (but not before).
A summary table of how to apply is below:
| Stage in proceedings | Documents to apply |
| Before financial proceedings | Form A and Form D11 |
| During financial proceedings but before Forms E | Form D11, draft order and statement in support |
| During financial proceedings after Forms E | Form D11 and draft order |
Please note that these applications will attract court fees. A list of the family court fees can be found here.
In summary
Generally speaking, an MPS is designed to deal with “short term cashflow problems” and its calculation is “somewhat rough and ready” according to Mr Justice Coleridge in Moore v Moore [2009].
An application for MPS should be approached with caution, particularly if it is not a high value case. Every effort should be made to negotiate an outcome before approaching the Court to resolve the situation, and failure to do so might result in a costs order against the applicant.
If you require any further assistance regarding Maintenance pending suit, please feel free to contact our Family Team and we would be happy to help.