During divorce proceedings the court can make an order for Maintenance Pending Suit (MPS), or in a civil partnership Dissolution Maintenance Pending Outcome, to be paid until the resolution of the divorce/ dissolution with a decree absolute. Maintenance can be back dated to the date of the petition.
These orders are designed to address short-term cash flow problems. The Court’s approach is very much broad-brush rather than forensically detailed and will be focused on meeting reasonable basic expenditure such as paying the mortgage, household bills and day to day living expenses, rather than addressing long-term capital needs. The Court weighs these needs against those of the proposed paying party to achieve a fair balance.
Procedure for Maintenance Pending Suit
An application for long-term financial remedies can include an application for MPS. A written statement in support is needed if a Form E has not been filed, plus a draft court order. Generally, the courts will allocate an hour for such hearings so it is unlikely that oral evidence will be taken. In fact, it is fairly common for the court to list the hearing alongside procedural hearings like the First Appointment.
In routine financial remedy applications, the starting point is that each party should bear their own legal costs unless there has been ‘litigation conduct’. However, it is possible to apply for a costs order when asking for MPS. Costs are always at the discretion of the Court. It is sensible to make offers beforehand (called Calderbank Offers) as these may help obtain a costs order and indeed may lead to settlement with no need to lodge an application in the first place.
If the court is satisfied that one party intends to dispose of assets with the intention of defeating the claim for financial relief by the other party, then the Court can restrain that party by making ‘such order as it thinks fit’ including freezing the use of assets including bank accounts.
Caution is needed before embarking on such application as there are strict conditions to meet before a freezing order can be obtained, with adverse consequences for not doing so. Applications can be made On Notice or Without Notice (ex parte), with the latter even more strict rules apply.
There must be a good case with a real risk of injustice supported with solid evidence of intention to dissipate assets. Applicants must be scrupulously candid about their own circumstances or any issue which might determine the case. The Court will only freeze what is needed and will not prevent a party meeting their living expenses or running their business.
Financial and divorce solicitors
If you have any queries regarding emergency maintenance please contact our family lawyer in Guildford on 01483 451900.