A timely reminder: the principles of Maintenance Pending Suit and the decision of the Court of Appeal in Rattan v Kuwad [2021] EWCA Civ 1

In Rattan v Kuwad [2021] EWCA Civ 1, the Court of Appeal considered “an important point of principle as to the approach which the court should take to the determination of an application for maintenance pending suit.”[1] Moylan LJ, giving lead judgment (Macur LJ and Asplin LJ agreeing),  allowed the Wife’s appeal and determined that “the Court is required to undertake such analysis as is sufficient to be satisfied that the ultimate award is “reasonable”’ (48). Considering the existing judicial guidance, the Court determined that it depends on the “circumstances” of any particular case. TL v ML [2006] 1 FLR 1263 remains an important authority but its wings have been clipped. Specific MPS budgets which exclude capital or long-term expenditure are not necessary in every case and the critical analysis of such a budget is not required in every case. There will be cases where just such an approach is required. The specific requirement for a budget set out at para 124 (iii) of TL v ML [2006] is no longer mandatory. Evidence of income needs as set out in the Applicant’s Form E may indeed be sufficient in the appropriate case. As such, the Court implicitly recognised that, by definition and by their very nature, applications for MPS also require robustness and urgency as well as forensic analysis (i.e. there is a need and it is now). Inevitably, the key distinction in practice will rest on the size of the assets (for the euphemistic “circumstances”, read “amount of money”).

 

By way of reminder, section 22 reads,

“(1) On a petition for divorce, nullity of marriage or judicial separation, the court may make an order for maintenance pending suit, that is to say, an order requiring either party to the marriage to make to the other such periodical payments for his or her maintenance and for such term, being a term beginning not earlier than the date of the presentation of the petition and ending with the date of the determination of the suit, as the court thinks reasonable.”

 

That is, the Court has a very broad discretion with and within which to exercise their power. This is entirely appropriate given the mischief of the section. The Judge is able to make such order as she or he thinks reasonable. Such reasonableness must equate to “fairness” which is the overarching objective in financial remedy cases, as per White v White [2001] 1 SC 596 (TL v ML and Others (Ancillary Relief: Claim against Assets of Extended Family) [2006] 1 FLR 1263 at para 124(i)).

 

As for the facts of Rattan itself, the case itself was “not an unduly complex application” (47). Indeed, such were the facts that “it did not require any extensive analysis but was an application which could be determined justly with a succinct summary and consideration of the relevant factors” (47). One might say, precisely the type of case designed for (i) an MPS application and (ii) early and summary judicial intervention. Sadly, by the time the case was heard by the Court of Appeal its salient features were months of delay (during which no maintenance was being paid) and a rather sorry procedural history. Indeed, 14 months had passed since the original order for MPS had been made at first instance and appealed.[2]

 

In October 2019, DDJ Morris at first instance ordered the Husband pay £2,850 pcm to the Wife. By way of very brief background, both parties were in their early forties, had married in 2009 and separated in early 2019. W had lived with the parties’ child (aged 9) and her 17 year old child from a previous marriage in the FMH since separation. By profession, W was a trained teacher and H had worked as an IT consultant under the auspices of his own company. Having refused H’s application for an adjournment at the outset of a whole day’s contested hearing, DDJ Morris had ordered a sum that was commensurate with the shortfall in W’s income. However, she had also limited W’s claim. She had not allowed a further sum for essential repairs due to a lack of evidence. The Judge had also ordered that the mortgage be changed to a fixed rate product so as to reduce Wife’s income needs by £600. She had, however, included a sum for school fees. H appealed the decision on a number of grounds. These included the inclusion of an allowance for school fees and the issue concerning the mortgage but principally rested on the perceived deficiencies of the DDJ’s financial analysis, including the lack of a specific budget and a failure to analyse W’s budget (such as it was).

 

HHJ Oliver allowed H’s appeal. He concluded that the DDJ had failed to undertake a critical analysis of W’s needs ( there had been a “lack of critical analysis of the wife’s needs”) and, accordingly, had failed to apply the law, stating that “it is immediate expenditure needs which need to be looked at, nothing more.”

 

HHJ Oliver had further held that (i) the inclusion of school fees was not appropriate for an MPS application as they were a long term-expenditure and (ii) the DDJ’s order in respect of the mortgage was wrong as the Court had no such power. Nevertheless, HHJ Oliver had continued to remark that he was “sure there is a need for maintenance”. However, in his judgment, HHJ Oliver had felt that he was not in a position to decide the sum. This was  on 6th  January 2020.

 

And so, on Wife’s appeal (Moylan LJ himself having given permission), to the Court of Appeal. The key determination is at paragraphs 48 – 49. They read:

 

  1. The substantive question arising from the Judge’s decision is whether he was right to decide that the DDJ had failed to undertake, what he considered to be, the required “critical analysis of the wife’s needs”. On this, I disagree with the Judge because I have no doubt that the DDJ undertook a sufficient analysis of the wife’s income needs. She clearly accepted, as she was entitled to do, the wife’s budget as representing her reasonable income needs. It was not an extensive budget of the type which was considered in F v F. It was the type of budget which will be very familiar to judges determining financial claims and which they are well placed to decide, on a broad assessment, whether they are or are not reasonable for the purposes of determining an application for maintenance pending suit. The court is not required to undertake any greater “critical” analysis of a schedule of income needs than is required of any other aspect of the case. 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.

 

  1. I also do not consider that the judge was right to exclude certain items from the wife’s budget as not being “immediate expenditure needs”. The word “immediate”, in this context, does no more than reflect the fact that the court is concerned with an order for maintenance pendingthe final resolution of the financial dispute between the parties. However, the use of this word does not mean that the court should embark on the type of exercise undertaken by the Judge in this case. The fact that some items of expenditure are not incurred every month does not mean they should be excluded for the purposes of determining what maintenance is reasonable.”

 

The Court does not, therefore, need to critically consider monthly expenditure and sift expenditure for exceptional items that may not occur each and every month, “There may be exceptional items of expenditure which need to be considered but, with all due respect, the approach taken by the Judge in this case was unrealistic and would require far too detailed an analysis. It would also be inconsistent with the broad analysis undertaken for the purposes of determining an application for maintenance pending suit” (para 50).

Further, ,“it is not necessary for an applicant for maintenance pending suit to provide a list of income needs distinct from that set out in the Form E. As the wife submitted, she was seeking no more than her basic needs which she had set out in her Form E and which could also be used for the purposes of her maintenance pending suit application” (para 51).

In so far as the particular appeal went, the DDJ had been entitled to include the school fees as part of her maintenance order. There was no need for a separate application for a school fees order. All in keeping, it might be said, with an implicitly broad and holistic approach.[3]

Moylan LJ concluded, “it is clear to me that the DDJ undertook a sufficient analysis of the relevant factors to support her decision. As referred to above, she plainly accepted that the wife’s listed needs were reasonable. She was entitled to include the amount sought for school fees. She took into account the wife’s likely income. It is also clear that she analysed the husband’s budget and the parties’ respective cases as to the husband’s resources and determined that the husband had sufficient resources to meet the wife’s income needs as well as his own needs. Accordingly, she considered the relevant factors and reached a fair decision as to what level of maintenance would be reasonable. In those circumstances, there was no basis on which the Judge could properly interfere with the DDJ’s decision.” (54)

 

It should be noted that there is no mention in the statute of “immediacy”. To the contrary,  Moylan LJ said, “the principal issue raised by this appeal is what needs qualify as being immediate and how should the court approach the determination of this question.” Indeed, in so doing he observes the term’s origins. “It is also clear that, as set out in the Red Book, the purpose of an order for maintenance pending suit is to meet “immediate” needs.” However, having engaged with “immediacy”, the Court concluded, “The word “immediate”, in this context, does no more than reflect the fact that the court is concerned with an order for maintenance pending the final resolution of the financial dispute between the parties.” It is, perhaps, regrettable that the Court of Appeal, did not go further and do away with the special status of that word but the reasoning is plain and rooted in common sense. And that might rather be the point.

In considering the accumulated guidance, Moylan LJ broadly acknowledged cases as belonging either to the “rough and ready” approach or the critical approach. He identified the origins of pragmatism with Balcombe J (as he then was) in F v F (Maintenance Pending Suit) (1983) 4 FLR 382 where it was said,

“Clearly there must be an empirical approach, since on an application for maintenance pending suit it is quite impossible practically to go into all the kinds of detail that the court can go into when dealing with the full hearing of an application for financial relief, and in the ordinary sort of case the registrars who deal with these applications will have to take a broad view of means on the one hand and income on the other and come to a rough and ready conclusion.”

The same approach can be found in M v M (Maintenance Pending Suit: Enforcement: On Dismissal of Suit) [2009] 1 FLR 790 and in Moore v Moore [2010] 1 FLR 1413.[4]

Moylan LJ also identifies the origin of the “critical” approach in F v F (Ancillary Relief: Substantial Assets) [1995] 2 FLR 45. Indeed, as the header of the case illustrates and, as Moylan LJ remarked, “it is relevant to note that that case concerned exceptional wealth” (36). Indeed, the Court itself in F v F repeatedly described the parties as “super rich” and “ultra-rich”.

Indeed, the unusualness of the couple because of their wealth was clearly at the front and centre of the  Court’s thinking. Thorpe J (as he then was), pointed out that the parties belonged to “a tiny percentage of the world population”. By contrast, he remarked that the statute itself was “sufficiently flexible to meet the circumstances of every conceivable case”. That is to say, Moylan LJ not only identifies the fact that the forensic approach originated in big money cases but that the difference between such cases and the rest of us was recognised from the outset. Indeed, having seemingly accepted the premise of two approaches, the Court of Appeal, in its analysis, also seems to suggest that the premise is something of a false binary.

Generally, we might suggest that there appears to be an underlying, if sotto voce, assumption with this approach that it is easier to redress the unfairness done to a payer who has overpaid than a payee who has not been paid.

The high-water mark of the forensic approach for MPS is paragraph 124 of TL v ML which Moylan LJ cites in full and which reads,

[124]     From these cases I derive the following principles:

(i)     The sole criterion to be applied in determining the application is ‘reasonableness’ (s.22 of the Matrimonial Causes Act 1973), which, to my mind, is synonymous with ‘fairness’.

(ii)     A very important factor in determining fairness is the marital standard of living (F v F). This is not to say that the exercise is merely to replicate that standard (M v M).

(iii)     In every maintenance pending suit application there should be a specific maintenance pending suit budget which excludes capital or long-term expenditure, more aptly to be considered on a final hearing (F v F). That budget should be examined critically in every case to exclude forensic exaggeration (F v F).

(iv)     Where the affidavit or Form E disclosure by the payer is obviously deficient, the court should not hesitate to make robust assumptions about his ability to pay. The court is not confined to the mere say-so of the payer as to the extent of his income or resources (G v G, M v M). In such a situation, the court should err in favour of the payee.

(v)     Where the paying party has historically been supported through the bounty of an outsider, and where the payer is asserting that the bounty had been curtailed, but where the position of the outsider is ambiguous or unclear, then the court is justified in assuming that the third party will continue to supply the bounty, at least until final trial (M v M).

To which, Moylan LJ concludes,

Whilst I accept the general effect of these principles, as with all guidance, they clearly have to be applied in the particular circumstances of the individual case. In the present case, for example, it was not necessary for the wife to provide a specific maintenance pending suit budget. Her income needs as set out in her Form E matched her needs for the purposes of her application for maintenance pending suit. Further, not all budgets require critical analysis. The extent to which a budget or other relevant factors require careful analysis will depend on the circumstances of the case. I return to this below but, in summary, the wife’s budget in this case did not require any particular critical analysis; it was a straightforward list of income needs which were easily appraised.[5]

To be clear, Rattan does not formally replace previous guidance. Indeed, the principles at paragraph 124 (i) and (ii) in TL v ML (namely, fairness and standard of living) are explicitly endorsed by the Court of Appeal. Further, there are cases where there will need to be a budget and applications may still fail or come up short for want of a specific budget. That said, (iii) clearly no longer applies to all cases.

To this end, the decision of the Court of Appeal is  a reweighting of the scales in favour of the rough and ready approach, the proverbially clipping of the TL v ML wings. However, it would be a mistake to draw conclusions too broadly. Of course, the contrasting approaches are obviously comparable to other discrete and well-trodden issues within matrimonial finance (e.g. non-matrimonial property) and, moreover, its practice and adjudication more generally. Ultimately, however, the decision acknowledges the fundamental tension at play in all contested interim applications, whether they involve the removal of a child or injunctive relief according to American Cyanamid principles. That is, the competing (and, potentially, mutually exclusive)  claims of urgency and expedition on the one hand and caution, including pre-determination of the substantive issues, on the other.

Ultimately, the Court of Appeal have restated the primacy of the statute and its singular requirement of reasonableness. In so doing, they have recognised that the strictures of forensic analysis can prove not only disproportionate but self-defeating and offered a gentle reminder of the disconnect between High Court money and regular money. We might suggest that over time and with use, even the best guidance can start to harden on the underside of the boat.

Whether it is true that, in actual practice, a tendency towards a forensic approach had evolved is a moot point. The first instance decision and first appeal in Rattan is evidence of the two different approaches being alive and well. In practice, the almost standard, amphibious 2 hour hearing as the first hearing (listed by the Court Office upon issue of an MPS application) has been a reality in many Courts for years: neither one thing nor the other but as good as it gets.  If anything, it suggests that the Court Office at least have been trying to grapple with this for years. The message from the Court of Appeal is, however, a welcome one, emphasising pragmatism when Court and judicial resources are even scarcer than before. To conclude, though, with Moylan LJ’s salutary reminder of the very purpose of MPS (para 31),

“(Section 22) is an extremely valuable power because it enables the court to make an order to meet the income needs of a spouse and the children at a time when they might be in real need of financial support following the parties’ separation and the commencement of proceedings. It is intended to provide the court with the ability to act expeditiously and to make an order which meets that need at an early stage of the proceedings when the evidential picture might be far from clear.”

 

[1] Per Lord Justice Moylan, Rattan (para 4).

[2] By contrast, the matter proceeded with notable speed once in the Court of Appeal. The appeal was heard in the Court of Appeal in December 2020 and judgment given in early January 2021.

[3] Incidentally, the Court of Appeal did not specifically adjudicate on the issue of the mortgage instalments. DDJ Morris had made an order in such terms and HHJ Owens had overturned the decision on the basis that the Court lacked the jurisdiction to make such an order. Somewhat delphically, the Court of Appeal observed: “As for the mortgage instalments, this provision is now no longer relevant. However, I would observe that, as the wife submitted, this was to the husband’s benefit as it reduced her income needs. Accordingly, in the absence of this being effected, it would have been open to the DDJ to increase the maintenance payments to reflect these greater needs.” (53).

 

[4] Per Coleridge J at 22: “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.”