Maintenance Pending Suit Applications – When Are They Worth the Cost?

What is Maintenance Pending Suit (MPS)?

Maintenance Pending Suit is effectively a court ordered interim payment where one party pays the other a specified sum to cover living expenses until the conclusion of ongoing court proceedings. Once proceedings are at end, any agreed maintenance payments within the final court order cease to be interim and, if necessary, become an ongoing spousal maintenance order, either on a joint lives or term basis. As noted in the recent judgment of DSD v MJW (with reference to the case of BD v FD), the application for MPS must be ‘manifestly required’ i.e. the court must make a broad assessment of what might be required to meet outgoings in the interim and the paying party’s capacity to fund this arrangement (if such capacity exists).

Framework approach

The recent case of AT and NB set out a form of framework that one can apply when considering whether an MPS application might be necessary:

• What are the interim needs to be met?
• To what extent can those needs be met by the individual making the application?
• If there is a shortfall, is it appropriate to look to the other party to make up the difference?
• If so, what can they actually afford to pay?

It is therefore important to be cautious to ensure that all of these elements have been carefully considered before proceeding with an application.

Is the application appropriate?

The appropriateness of an MPS application was recently considered in the case of DSD v MJW.

The background to the case was:

• The wife (W), who was 40 years old, and the husband (H), who was 44, were engaged in financial remedy proceedings in the Family Court. They had two children having been married for 14 years.

• Prior to the Final Hearing, W made an application for MPS.

• W’s income was £38,000 p.a., whilst H’s income (whilst disputed) was around £39,000 p.a. Both had housing costs, however W’s were much lower at £3,000 p.a., as she lived in subsidised rental accommodation. H’s housing costs were around £20,000 p.a.

• W’s sought £500 a month in MPS payments until resolution of matters in July (some 3 months later), making her claim worth £1,500, or up to £2,000 if the claim was to be backdated to the date of her original application.

Outcome

Whilst it is apparent in any MPS case hinges on things like schedules of outgoings and income evidence, here the court concluded that W had failed to make a sufficient case that the court’s intervention was manifestly required in the circumstances. The court restated that this is a key test for the viability of an application and the applicant had failed to justify such costly litigation for modest sum she was seeking.

Crucial to the question of proportionality was the amount spent on costs for the application, which totalled £13,000 by the time the matter was heard. The costs of the application were, therefore, almost 10 times the sum W claimed. As the court noted, counsel’s fees alone for W would have exceeded the amount she sought in her claim, thus seriously calling into question whether the application itself was sound.

The court noted that in the event the application had been made at an earlier stage, such as in December 2024 when W had requested £800 a month in interim maintenance, it might have been less disproportionate to have made an application.

Conclusions

Recent case law shines a significant light of the question of proportionality of court applications (particularly interim applications). By their nature, court applications are both costly and somewhat of a blunt force instrument to try and move matters forward. It is incumbent on solicitors to use the court arena judiciously and ensure that the costs being incurred through an application is warranted in the context of what the application is seeking to achieve. By any measure, a court application that costs £9,000 in the pursuit of £2,000 is, objectively, unsound, and the court quite rightly called this out.

There are, unavoidably, occasions where a court application is warranted as a means of producing a fair and expedient outcome, however, as the judgment notes, the parties and their representatives should be flexible in their problem solving. In this case, the judge notes that the equity from the sale of a property was being held pending an outcome, and it was entirely possible for both parties to agree to release £2,000 each to meet their outgoings. Instead, they collectively spent £13,000 for circumstances to remain as they were before the MPS application.

If you have any queries regarding the resolution of finances on divorce or any aspects of family law, please contact a member of our Family & Matrimonial Team.