What does Rattan v Kuwad tell us about Maintenance Pending Suits?

26/02/2021

In the recent case of Rattan v Kuwad [2021] EWCA Civ 1 the Court of Appeal considered the approach of the court in determining Maintenance Pending Suit applications.

In this article, we look at what a Maintenance Pending Suit is and what the case law has now said about interim periodical payments.

What is Maintenance Pending Suit and the Procedure?

A Maintenance Pending Suit is when a party can be ordered to make interim periodical payments to the other party before the determination of the main financial suit. The application must be made on or after a petition for divorce, nullity of marriage, or judicial separation. Prior to issuing proceedings a party must follow the pre-action protocol as set out in the Family Procedure Rules 2010. The party must file an application notice (D11) and it must be accompanied by a sworn statement explaining why an order is necessary and include detail of that party’s means.

The practicalities to consider following Rattan v Kuwad

The facts of this case are as follows:

  1. The wife issued an application for Maintenance Pending Suit. At a hearing, DDJ Morris awarded the wife £2,850.00 per month.
  2. The husband appealed arguing that the DDJ failed to apply the law appropriately and failed to undertake an extensive analysis of the wife’s needs.
  3. The husband’s appeal was allowed. HHJ Oliver concluded that “…there is a need for maintenance” but could not determine the amount.
  4. The wife was granted permission to appeal.
  5. The Court of Appeal found in the wife’s favour and held that DDJ Morris sufficiently analysed the wife’s expenditure.

In determining Lord Justice Moylan explored the practicalities of an application for Maintenance Pending Suit and held that this case did not warrant an extensive analysis but one which could be determined “with a succinct summary and consideration of the relevant factors” (pg.47).

In considering whether there was a need to carry out a critical analysis of the wife’s needs he held that there was not. “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” (pg.48).

Moylan J also considered the need to file a separate Maintenance Pending Suit budget and held in this case that it was not necessary. The wife was seeking her basic needs which were set out in her Form E and could be used for the purposes of her maintenance pending suit application (pg.51).

Moylan J also determined:

  1. That school fees can form part of an order for Maintenance Pending Suit.
  2. Where items on an expenditure list do not occur on a monthly basis then that does not mean that it should be excluded as not being an immediate need in determining what maintenance is reasonable (pg.49).

The leading Judgment in Rattan v Kuwad provides helpful guidance for practitioners in understanding the principles and procedures in Maintenance Pending Suit applications. 

More information

Our family team are able to assist with all aspects of separations and divorces. If you require any assistance, please contact the team here.

This article was written by Rukhma Sohail, Solicitor in the Family Law Team. The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. Specific legal advice should be taken on each individual matter. This article is based on the law as of February 2021.

26/02/2021

Authors

Rukhma Sohail

Solicitor

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