Whilst we no longer live in an era of the traditional breadwinner and stay at home partner, it is still not uncommon for there to be a discrepancy in income upon the separation of a couple that can have a serious impact on the lesser earning spouse. It is hoped that in most cases an interim agreement can be reached whilst a formal financial arrangement is being worked towards however, when this is not possible the law makes provisions to ensure one of the spouses does not face unnecessary hardship.
S. 22 Matrimonial Causes Act 1973 relates to Maintenance pending suit applications. The law states that “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”.
The Application can be made simultaneously with the divorce petition and unlike a final financial Order which can only be made after the pronouncement of the Decree nisi, an Order can be made at any time after the issue of the Petition.
There are a couple of important points to note in relation to a Maintenance pending suit application; any such payment is calculated on what the Court deems reasonable in relation to a parties basic needs. A greater maintenance payment may be attainable under the final Financial Order and the overall needs of each party however only basic needs would be considered at this stage.
Secondly, unlike the majority of financial claims within the Family Court whereby each party bears its own costs, a Maintenance pending suit application is subject to the civil costs rules and generally costs follow the event. This means the unsuccessful party may not only be faced with an unwanted Court Order but also their former partners’ legal bill.