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Maintenance Pending Suit

Family Law - Maintenance Pending Suit

If you are thinking of making an application for Maintenance Pending Suit you will need to know the following:

The Court's view the objectives of your making an application for maintenance pending suit as generally to meet an applicant's immediate needs or to 'hold the line' until a more detailed examination is possible. In Moore v Moore [2009] EWCA Civ 1427 Coleridge J remarked on the difference in approach between interim and final orders for maintenance:

An order for maintenance pending suit is, as Bodey J observed, 'a creature different in form and substance from substantive orders made upon the making of decree nisi'. It is designed to deal with short-term cash flow problems, which arise during divorce proceedings. Its calculation is sometimes somewhat rough and ready, as financial information is frequently in short supply at the early stage of the proceedings.

Your first priority is to sit down and prepare a detailed schedule of incomings and outgoings and where possible to have proof of each items referred to. Once you have done this an application for MPS should be issued using a D11 form.

You will need to provide the Court with a Copy of your Mediation Certificate when you submit your application for MPS
the application notice (Form D11) must state what order you are seeking and briefly why you are seeking the order;
if you wishes to rely on matters set out in your application as evidence your application must be verified by a statement of truth;
where financial statements (Form E) have not yet been filed, you must file written evidence explaining why the order is necessary and giving up to date information about your financial circumstances - you must file a copy of any written evidence in support when filing the application notice;
if Form E has already been filed, the relevant information can be provided in your application notice;
once the application has been lodged, the court must fix it for a hearing, the length of time required for the hearing will depend on the issues in the case, in many applications a hearing in the region of two to three hours is often sufficient, but in complex cases a maintenance pending suit application may need to be listed for a whole day;
a copy of the application notice must be served as soon as practicable after it is filed and at least 14 days before the hearing; If you decide to serve the application yourself at the Respondent's address, take a friend with you and a camera which has the ability to set the date and time and get them to either video you putting the application through the letter box or photograph you. DO NOT FORGET TO ENSURE THAT YOUR VIDEO OR PHOTO HAS THE DATE AND TIME ON IT
if a copy of an application notice is served by a court officer, it must be accompanied by a notice of the date and place where the application will be heard, a copy of any witness statement in support and a copy of the draft order which the applicant has attached to the application;
if an application is served, but the period of notice is shorter than the period required by the rules, the court may direct that, in the circumstances of the case, sufficient notice has been given and hear the application;
not less than seven days before the date fixed for the hearing, the respondent must file with the court and serve on the other party a short sworn statement about their means, unless they have already filed Form E;
most courts will deal with maintenance pending suit applications by way of submissions from the parties' representatives or the parties themselves if they are acting as litigants in person;
You must also lodge a draft order at the time of submitting your application for MPS

Once the MPS Application has been issued and served you will need to attend the hearing.

In the limited time that is generally available on an application for MPS, the court is compelled to take a "broad view of the means on the one hand and income on the other of the parties and come to a rough and ready conclusion" (Lord Balcombe). Please note that there will generally not be sufficient time to take oral evidence.

MPS applications are generally (and optimistically) listed to be heard in a one hour. This is rarely adequate to deal with often detailed submissions, judgment and costs. When submitting your application, you should therefore ask for a hearing period of 2-3 hours. If the matter is only listed for an hour it is not a necessary requirement to prepare a court bundle, however the lack of a bundle can leave a Judge in an unenviable position of attempting to resolve highly contentious issues without the assistance of a paginated bundle or clear guidance as to the appropriate quantum. I would therefore suggest that as a litigant in person acting in either the capacity of an applicant or respondent you should prepare a short core bundle for the Judge's ease of reference though it is not strictly required.

If you already have a FDH hearing listed, there is no reason in principle why an application for MPS should not be listed alongside a First Appointment.

BUT DO NOT CONSIDER DOING THIS, as there can be difficulties involved in hearing an application for MPS alongside a FDH. While it is technically possible for a judge to hear a MPS application before the FDH, it is not realistic to expect yourself and the Applicant/Respondent to deal with the contentious issue of interim maintenance and then expect both of you to enter into a FDH in the a spirit of compromise.

If you need any help completing your application for MPS or would like us to check it before you submit it to the Court please telephone us or e-mail us and use our checking service regarding the documents you are submitting to the Court

An application for maintenance pending suit is not straight forward. The Judges can be reluctant about granting such an order especially if they feel that your divorce is relatively close to completion. If you would like full details of the approach of the Courts when consider an application for MPS and the best way to present your case so that you have a better chance of success, we can forward a full report setting out matters that you need to consider for the sum of £25.00

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