When a couple separates, this can cause some cash flow problems for the financially weaker party.

On many occasions the financially stronger party agrees to pay maintenance and child maintenance to support the weaker party. 

Sometimes however, the financially stronger party either pays nothing or doesn’t pay enough.  What is to be done about this?

Well if there has been a divorce petition issued, then there can be an application for maintenance pending suit.  In other words the financially weaker party can ask the court to order that the stronger party pays them maintenance until the divorce proceedings are finished.

There is a box which can be ticked on the divorce petition for an application for maintenance pending suit.  There is also a box on “form A” which is the form used to apply for financial remedies on divorce.

The court’s power to order maintenance pending suit comes from section 22 of The Matrimonial Causes Act 1973 which says:

“On a petition for divorce, nullity of marriage or judicial separation, the court may make an order for maintenance pending suit, that is to say, an order requiring either party to the marriage to make to the other such periodical payments for his or her maintenance and for such term, being a term beginning not earlier than the date of the presentation of the petition and ending with the date of the determination of the suit, as the court thinks reasonable.”

In the case of TL v ML [2005] EWHC 2860 (Fam), Deputy High Court Judge Mostyn QC gave the following explanation in relation to maintenance pending suit.  Let’s look at the explanation he gave and then think about it a bit more:

i) The sole criterion to be applied in determining the application is "reasonableness" (s22 Matrimonial Causes Act 1973), which, to my mind, is synonymous with "fairness".
ii) A very important factor in determining fairness is the marital standard of living (F v F). This is not to say that the exercise is merely to replicate that standard (M v M).
iii) In every maintenance pending suit application there should be a specific maintenance pending suit budget which excludes capital or long term expenditure more aptly to be considered on a final hearing (F v F). That budget should be examined critically in every case to exclude forensic exaggeration (F v F).
iv) Where the affidavit or Form E disclosure by the payer is obviously deficient the court should not hesitate to make robust assumptions about his ability to pay. The court is not confined to the mere say-so of the payer as to the extent of his income or resources (G v G, M v M). In such a situation the court should err in favour of the payee.
v) Where the paying party has historically been supported through the bounty of an outsider, and where the payer is asserting that the bounty had been curtailed but where the position of the outsider is ambiguous or unclear, then the court is justified in assuming that the third party will continue to supply the bounty, at least until final trial (M v M).”