Who would have thought that the rarely discussed interim maintenance and maintenance pending suit order under would gain such a worldwide profile last month. In a story picked up all over the world, The Times of India reported that a husband had been ordered to pay “a wapping RS four lakl (approximately £4,800) every month” pending the final decision in the divorce. Apparently, it had taken the wife six years to get to this point and the divorce is likely to continue for a very long time. Much was made of the fact that the judge took into account “the ranking of the family business in the Super Rich List” and the assets of the companies of RS 921 Crore (£111M) published in Fortune 500 Publication. The judge, with an even broader brush commented on the husband’s changed income “whether this radical change was a result of accounting jugglery or a result of concealment, the jump is too significant to be ignored”.

In England & Wales, a divorce court is given the power to make maintenance pending suit orders by section 25 of the matrimonial causes act 1975 (Civil Partnerships are covered by paragraph 38, schedule 5 of the Civil Partnerships Act 2004).

The language is a little odd, but in essence “maintenance pending the suit” is before the divorce is finalised (the Decree Absolute) whilst “interim maintenance” is after the Decree Absolute.

Since 2005, we have some broadly accepted legal principles to help predict the courts approach to decision making in these situations, e.g.:

  • Reasonableness” or “fairness” are the key criteria;
  • Fairness” can be judged in the light of the standard of living in the marriage;
  • The decision will be based on an assessment of the expenses (a budget) which excludes capital or long term expenditure;
  • Where the spouse who is being asked to make the payments has given inadequate or deficient disclosure, the court should not hesitate to make robust assumptions against his/her ability to pay; and
  • Where the spouse being asked to pay has been supported by someone else (a family member, trust or company for example) the court can reasonably assume that the payments will continue, at least until the final trial.

Whilst this sounds very positive for a spouse considering or being advised to make an interim claim, the reality is that these applications can be the most difficult of litigation decisions.

The courts’ approach has been said to be “rough and ready”, the legal costs high, (in one reported case a staggering £100,000) and there is the very real risk that the looser (the “least successful”) may have to pay all of the “winners” costs.

There is much to play for in these applications. For instance, a lower award (usually for the wife) could put significant pressure on her and her lawyers, whose advice is also exposed at an early stage and the other party may say “I told you your lawyers were rubbish……you will do no better at the final hearing”. Whilst a higher award might set a benchmark which is unlikely to be decreased and is therefore, to some extent, a prediction of the future.

In many cases, fortune does favour the bold because the cost of the applications are a significant detriment, particularly if the amounts contested are small.

If you are contemplating making such an application, the following considerations are the headline thoughts to take to your lawyer whilst always remembering the Chinese proverb “If you must play, decide upon three things at the start, the rules of the game, the stakes, and the quitting time”.

  • Consider if maintenance is an essential or just nice to have - if the amount you are receiving from your spouse is manageable but short of your target, a letter together with your budget should be sent asking for the shortfall explaining that you will borrow what is needed to avoid legal fees if it is not paid. The objective is that if you borrow (and the spending ultimately is considered reasonable or thereabouts) the loan will be deducted from the capital available for distribution, so at worst, you will pay half of the costs and no legal fees;
  • If you must go to court, invest time in preparing your budget – it may be worth thinking about working with a divorce consultant like Laura Rosefield at Rosefield Divorce Consultancy who, with years of experience and at a fraction of the legal cost, can help you prepare a budget that is robust yet realistic and therefore hard to attack;
  • Regardless of whether you are making or defending an application for maintenance, insist that your lawyers make an early offer to settle - send a budget, make a written offer and write at the top of that letter “Without Prejudice Save as to Costs”. These magic words mean that from the moment the letter is sent, the recipient will be put at risk of paying your legal costs, from that date, if they do not beat the offer contained in the letter.