Maintenance pending suit, otherwise known as “MPS” concerns payments made from one spouse to another during divorce proceedings, but before the financial outcome of the divorce is finalised.
It is also known as ‘interim maintenance’ or ‘interim periodical payments’. The payments made are generally regular payments, and are used to assist one party with their day-to-day living expenses. MPS 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 maintenance pending suit (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 from which 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 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 but this brings a level of increased hostility, not to mention legal fees.
In relatively “small money/average money” cases, the costs of making an application are likely to be disproportionate to the relief that is sought, particularly because an application for MPS is only made for a number of months, pending the resolution of the case.
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, but this will be reviewed by the Judge. 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.
The advantages of making an application and having a determination of MPS during ongoing financial remedy proceedings is that if successful, the applicant 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.
Applying for maintenance pending suit
If the application is made during existing financial remedy proceedings, a general application is required 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. If the application is made 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).
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 .
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.