General principles for maintenance pending suit
General principles for maintenance pending suit

The following Family practice note provides comprehensive and up to date legal information covering:

  • General principles for maintenance pending suit
  • Jurisdiction
  • Quantifying maintenance pending suit
  • Duration and backdating
  • Pre-existing agreements
  • Practice points
  • Provision for legal fees
  • Procedure and drafting
  • Variation and refunds

The court’s power to make an order for maintenance pending suit is contained in section 22 of the Matrimonial Causes Act 1973 (MCA 1973) and in Schedule 5 to the Civil Partnership Act 2004 (CPA 2004), specifically CPA 2004, Sch 5, Pt 8, para 38. Key principles are that an order for maintenance pending suit cannot be made earlier than the presentation of the petition and it must end on the determination of the suit and that the court has the power to make an order requiring either party to make to the other such periodical payments for their maintenance as it thinks reasonable.

An application for a financial order must be made at the same time as, or prior to, an application for maintenance pending suit being made, and an application for maintenance pending suit cannot be made outside of financial order proceedings. An order for maintenance pending suit may provide for the continuation of payments following determination of the suit (by pronouncement of the decree absolute) by way of an order for interim periodical payments. In BD v FD, Moylan J summarised the authorities on maintenance pending suit, adding (at para [34]) that his remarks ‘apply equally to applications for maintenance pending suit or interim maintenance under the Matrimonial Causes Act 1973’.

Careful consideration should be given to the proportionality of an application for maintenance pending

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