Maintenance pending suit

Where a couple has separated prior to the hearing for a divorce, one of the parties may not be able to financially support themselves fully. Maintenance pending suit (MPS) allows the court to order a party to pay maintenance to the other until the divorce becomes final.

MPS is given its legal basis in the UK under s 22 of the Matrimonial Clauses Act 1973. This provides:

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

Equivalent provisions also exist in the Civil Partnership Act 2004 in relation to civil partners.

MPS can be backdated from the date on which the initial petition for divorce, nullity or judicial separation was submitted.

The court can order one spouse to pay to the other MPS that it thinks is reasonable, ie, the amount which it thinks is fair.

A hearing for MPS is often scheduled only to last an hour, therefore the court is compelled to take a ‘…broad view of [the] means on the one hand and income on the other and come to a rough and ready conclusion’ (F v F (Maintenance Pending Suit) (1983)).

The court will also consider the marital standard of living prior to the separation. The court will not specifically try and replicate this standard of living, but it will be a factor taken into consideration.

There should be a specific MPS budget which is set by the court which does not take into consideration capital or long-term expenditure – these being issues which will be considered in the final divorce hearing.

Under the Family Procedure Rules 2010 (FPR), an application for MPS should be issued using the Part 18 claim and must attach:

• a draft order;
• written evidence in support of the application explaining why the order is required and providing the necessary information about his or her means.

Once this has been done the court hearing should be held within 14 days.

A respondent must file a statement of their means at least seven days before the court is to deal with the application.

The order for MPS must state how much should be paid periodically until decree absolute.

The payments must be made by standing order (s 1(5) Maintenance Enforcement Act 1991). Unless the court order provides that the payments should be paid in advance the payment will be presumed to be in arrears.

The payments have to be made directly to the spouse. They cannot be paid indirectly as part of a mortgage payment or something similar. They must be paid directly to the spouse enabling them to make such payments as the mortgage.