Spend your Savings or Claim a Maintenance Pending Suit?

Throughout the divorce process, bills have to paid and both parties need to maintain their lifestyles; our family law team take a look at the provisions that divorcing parties can apply for.

In the 2018 divorce case of LKH Vs TQA, Mr Justice Holman awarded the wife a Maintenance Pending Suit (MPS) for interim financial maintenance at the rate of £26,000 a month. In this instance, the judge was persuaded that the wife needed to spend £624,000 per annum on her household.

Rather than questioning the wife’s interim spending needs, the judge adopted a “broad brush” approach and his decision turned on the specific facts of the case, including the fact that both of the separating parties were wealthy.

In a 2014 case, Mr Justice Moylan in BD Vs FD stressed that the purpose of applying for an MPS is to address “immediate needs”. He went on to say “I would endorse, indeed emphasise, the word immediate”.

This means that in LVH Vs TQA, even though the judge did not scrutinise the wife’s expenditure, he was satisfied that the sum of £26,000 per month was needed to cover her means between the time of his ruling and the expected date of the final court order about financial matters. It is worth mentioning that long-term financial needs, which do not fall into the “immediate” category, are excluded from MPS decisions.

For divorcing couples where money is a lot tighter, decisions about whether it is worth the cost of making an application for MPS can be more difficult and a costs benefit analysis always has to be undertaken before embarking on a court application.

If one spouse has capital of their own, then they have to decide whether it is better to dip into those savings to meet immediate needs, rather than apply to the court for an MPS to cover the interim position.

In BD Vs FD, Justice Moylan stated that the wife was not disadvantaged if she chose to use some of her savings to meet her reasonable interim income needs. He ruled that the final capital award would be calculated by taking into account the actual resources at the time of any final trial.

The decision to apply for a Maintenance Pending Suit can pay off in some cases, but as shown here, making an application can be a risk and obtaining legal advice beforehand is always recommended.