Acting to stop harm: the FCA and Appointed Representatives
Who would have thought that the rarely discussed interim maintenance and maintenance pending suit order would gain such a worldwide profile last month. In a story picked up all over the world, The Times of India reported that a husband had been ordered to pay “a wapping RS four lakl (approximately £4,800) every month” pending the final decision in the divorce. Apparently, it had taken the wife six years to get to this point and the divorce is likely to continue for a very long time. Much was made of the fact that the judge took into account “the ranking of the family business in the Super Rich List” and the assets of the companies of RS 921 Crore (£111M) published in Fortune 500 Publication. The judge, with an even broader brush commented on the husband’s changed income “whether this radical change was a result of accounting jugglery or a result of concealment, the jump is too significant to be ignored”.
In England & Wales, a divorce court is given the power to make maintenance pending suit orders by section 25 of the matrimonial causes act 1975 (Civil Partnerships are covered by paragraph 38, schedule 5 of the Civil Partnerships Act 2004).
The language is a little odd, but in essence “maintenance pending the suit” is before the divorce is finalised (the Decree Absolute) whilst “interim maintenance” is after the Decree Absolute.
Since 2005, we have some broadly accepted legal principles to help predict the courts approach to decision making in these situations, e.g.:
Whilst this sounds very positive for a spouse considering or being advised to make an interim claim, the reality is that these applications can be the most difficult of litigation decisions.
The courts’ approach has been said to be “rough and ready”, the legal costs high, (in one reported case a staggering £100,000) and there is the very real risk that the looser (the “least successful”) may have to pay all of the “winners” costs.
There is much to play for in these applications. For instance, a lower award (usually for the wife) could put significant pressure on her and her lawyers, whose advice is also exposed at an early stage and the other party may say “I told you your lawyers were rubbish……you will do no better at the final hearing”. Whilst a higher award might set a benchmark which is unlikely to be decreased and is therefore, to some extent, a prediction of the future.
In many cases, fortune does favour the bold because the cost of the applications are a significant detriment, particularly if the amounts contested are small.
If you are contemplating making such an application, the following considerations are the headline thoughts to take to your lawyer whilst always remembering the Chinese proverb “If you must play, decide upon three things at the start, the rules of the game, the stakes, and the quitting time”.
If you have any questions relating to a maintenance claim, please contact a member of our family team, who will be able to advise you on the best options for your circumstances.
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