Rattan v Kuwad – Common sense in MPS decisions

In the recently reported case of Rattan v Kuwad [2021] EWCA Civ 1, the Court of Appeal considered the approach to be taken to awards in MPS applications. Here, we consider the basics of MPS applications - what they are, who they’re for, and how we can help - in the light of this new decision.

What is ‘MPS’? 

MPS stands for ‘Maintenance Pending Suit’. Still no clearer? It is also sometimes referred to as ‘interim maintenance’, i.e. maintenance payments provided by a divorcing spouse with a higher disposable income to the spouse with the lower disposable income until such time as decree nisi is pronounced and/or long term finances have been finalised (the ‘suit’ being the divorce proceedings). It’s designed to ensure the financial status quo continues whilst a couple is separating.

MPS is an interim application made after proceedings for a divorce and financial remedy have been begun. The court’s jurisdiction derives from section 22 of the Matrimonial Causes Act 1973 (or for civil partnerships, para 38 schedule 5 of the Civil Partnerships Act 2004).  Judges are given a wide discretion at statutory level:-

“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”.

How, and why, do you apply for it?

The application must be submitted to court with a witness statement in support, particularly if the application is being made before financial disclosure has been exchanged within the financial remedy proceedings. It is common practice to file a statement in support even if matters have passed this stage, in order to focus the court’s attention on shorter term issues. The statement should set out your income and explain your regular outgoings, and why your spouse is best placed to assist with any shortfall (as opposed to you needing to borrow money, with its associated costs).

Whilst the most obvious reason to apply is that without immediate financial support from your spouse, you will be left in a predicament of real need, these applications are sometimes made as part of a wider litigation strategy. This could be to aim to have the court set your ‘needs’ at a high level, in order to make it easier to achieve a larger overall settlement, or it could be to pressure the other party into negotiations even if you don’t intend to take the matter all the way to a hearing.

Rattan v Kuwad

In the past, MPS decisions have been said to be “rough and ready” (Coleridge J in Moore v Moore [2009] EWCA Civ 1427) with the most pervasive factor applying in all cases to be “fairness”. In 2005, the High Court provided guidance that “the budget should be examined critically” (Nicholas Mostyn QC in TL v ML and others [2005] EWHC 2860 (Fam), reiterating a principle set in 1995.

Now however, the Court of Appeal has said that critically examining budgets (and budgets being specific to MPS applications) is not always necessary, and in all but ‘big money’ cases may be at odds with the “rough and ready” approach. In Rattan v Kuwad [2021] EWCA Civ 1, the wife (a teacher) had obtained MPS provision from the husband (a self-employed IT consultant), which was then set aside by the High Court on the basis that the first instance judge had not critically examined her budget. When the wife appealed, the Court of Appeal sided with her, saying that the most important principle was that of fairness considering the parties’ needs, resources and standard of living during the marriage, and providing interim relief swiftly, and this would not always require a critical and in depth budget analysis.

Lord Justice Moylan said:-

“The court is required to undertake such analysis as is sufficient to be satisfied that the ultimate award is "reasonable". In some cases this might require a detailed examination of a budget, in others, such as the present case, it will be immediately apparent whether the listed items represent a fair guide to the applicant's income needs.”

What are the risks?

As with any litigation, there is a cost-benefit analysis which must be considered before issuing. Although at the end of the day inviting the court to adjudicate is the only way to once and for all get what you deserve if your spouse is refusing to pay necessary maintenance, often the gap between what your spouse is willing to provide and what you’re likely entitled to is small enough that the legal costs would outweigh the benefits. MPS applications involve a significant amount of work to get them off the ground, and when you combine that with the cost of counsel’s brief fee, you may be better off with whatever sum you can negotiate from your spouse.

In addition to this, there is always the risk that you ‘lose’ at the hearing (in the sense that you are awarded less than you’d hoped for) and have to pay the other party’s costs, or that the court awards you less than your spouse was willing to provide in the first place. To help protect against the former evil, it can be a good idea to put forward an offer marked ‘without prejudice save as to costs’ which, if rejected, will mean that if the court awards you more than you were willing to settle for then your spouse is at risk of having to pay your legal fees incurred after that date (for essentially forcing everyone to go to a hearing that was unnecessary).

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