Maintenance Pending Suit – what is this and when will it come into play?

What is maintenance pending suit?

In certain cases whereby a couple has separated prior to the hearing for a divorce one of the parties may be in a position whereby they cannot financially support themselves fully. In this case following the divorce hearing it would be likely that the other partner would be required to pay maintenance especially where children are involved.

Maintenance pending suit enables this to be done before the divorce hearing. In this case maintenance will be required to be paid pending suit.

Is there any legal basis for this in the UK?

Maintenance pending suit is given its legal basis in the UK under Section 22 of the Matrimonial Clauses Act 1973.

Section 22 of the Act provides for the following:

  • On a petition for a divorce, nullity of marriage or judicial separation the court may make an order for maintenance pending suit.

  • Maintenance pending suit is defined as an order requiring either party to the marriage to make the other such periodical payments for his or her maintenance and for such term beginning not earlier than the date of the presentation of the petition and ending with the determination of the suit.

Equivalent provisions also exist in the Civil Partnership Act 2004 in relation to civil partners and also under Schedule 1 of the Children Act 1989.

Backdating of maintenance pending suit

Following the definition of maintenance pending suit it can be awarded from the date on which the initial petition for divorce was submitted. As the application for maintenance pending suit and the hearing for maintenance pending suit will follow this it is clear to see that the periodical payments can be back dated.

How much will the court award for maintenance pending suit?

The court can order one spouse to pay to the other maintenance pending suit in such sum as the court thinks reasonable.

What factors will the court take into consideration?

A hearing for maintenance pending suit is often scheduled only to last an hour, therefore the court is compelled to take a broad view of the means on the one hand and the income on another coming to a rough and ready conclusion.

What criteria do the courts use to come to their decision?

The criteria which the court uses to come to the conclusion on how much to grant in a maintenance pending suit is that of reasonableness, i.e. the amount which they think is fair.

The court will also consider the marital standard of living prior to the separation. The court will not specifically try and replicate this standard of living but it will certainly be a factor which is taken into consideration.

There should be a specific maintenance pending suit budget which is set by the court which does not take into consideration capital or long-term expenditure – these being issues which will be considered in the final divorce hearing.

What is the procedure to establish maintenance pending suit?

The applicant must file for maintenance pending suit by notice of application using an affidavit. The applicant must file a short sworn statement explaining why the order is required and providing the necessary information about his or her means.

Once this has been done the court hearing should be held within 14 days.

What will the order for maintenance pending suit say?

The order for maintenance pending suit must state how much should be paid periodically until decree absolute.

How will the payments be made?

The payments must be made by standing order. Unless the court order provides that the payments should be paid in advance the payment will be presumed to be in arrears.

Do the payments have to be made directly to the spouse?

The payments have to be made directly to the spouse. They cannot be paid indirectly as part of a mortgage payment or something similar. They must be paid directly to the spouse enabling them to make such payments as the mortgage.