What the court generally does when it is looking at an application for maintenance suit is consider things in this way:

1. What are the monthly financial needs of the financially weaker party? The court will consider their budget and find e.g. £2,000 per month.

2. How much does the financially weaker party have coming in, e.g. from benefits or employment or child maintenance? E.g. £1,000 per month.

3. Is there a shortfall? In our example: yes £1,000 per month.

4. Does the financially stronger party have the means to pay? Conduct the same exercise re income and outgoings. Perhaps the stronger party has an excess of £1,500 per month.

5. The court goes onto consider how much if anything the stronger party should pay. In our example the court might order the stronger party to pay to the weaker party £1,000 per month.

Important practical points

The party who is thinking about making an application for maintenance pending suit should try and get the other party to agree to pay something, before making the application. There is no point in wasting time and money going to court if the stronger party would pay some money anyway.

Any agreement about how much money the stronger party will pay should be recorded in writing.

If the parties are not very far apart on how much maintenance pending suit should be paid then it may not be worth going to court over.

When the court hears the application, usually no one gives evidence, both sides just present an argument to the judge. That is in accordance with the Family Procedure Rules, rule 22.7:

“22.7 Evidence at hearings other than the final hearing

(1) Subject to paragraph (2), the general rule is that evidence at hearings other than the final hearing is to be by witness statement unless the court, any other rule, a practice direction or any other enactment requires otherwise.”

The rules about costs for this type of application are different. The person who “wins” the argument about maintenance pending suit will usually get an order that the other party should pay their costs of the application.

Hearings about maintenance pending suit are often set down with a time estimate which is not long enough. Often the court lists the case to take 1 hour and hearing the case properly takes a good deal longer.