Maintenance Pending Suit

Part of: Financial Settlement after Divorce

Maintenance pending suit is essential for a spouse who is unable to independently financial themselves during a separation and before a divorce.

During the course of a divorce many spouses may not be receiving financial support from their partners from the period when they separated until their divorce is finalised. Such spouses can make an application for interim maintenance. This interim maintenance is known as the maintenance pending suit.

A successful application for the maintenance pending suit will make it compulsory for the financial stronger spouse to make periodical financial payments until either the divorce is finalised, specified event has taken place or until a further order is made. Maintenance pending suit differs on this basis to spousal maintenance which continues after a divorce and also differs to a legal services order which is used to fund legal fees.  

Our divorce lawyers at Kabir Family Law can provide you with all the information you require in relation to obtaining financial spouse during your divorce proceedings and can also assist in completing and submitting your divorce petition to the court.  

Who is entitled to maintenance pending suit?

Quite often separating couples ask whether they are entitled to maintenance pending suit. Maintenance suit is an entitlement for married couples. This is available during the course of the divorce proceedings. Applications can be made by a spouse who are in need of financial suit. This is providing they are not receiving financial support. Maintenance pending support is not available for unmarried couples.

How do I apply for a maintenance pending suit?

A maintenance pending suit is usually applied by the financially weaker spouse or homemaker who has sacrificed their financial future for the sake of the family.  A maintenance pending suit order usually serves the purpose of allowing the applicant spouse to meet short term financial issues during the proceedings.

An application for a maintenance pending suit is required to be submitted to the family court to be dealt with under the section 25 of the Matrimonial Causes Act 1973. At Kabir Family Law our divorce law specialists can advise you in completing the financial order application form.

Our divorce law specialists have advised and assisted many spouses in completing and submitting the financial order application form to the court for a maintenance pending suit order.

Applying for maintenance pending suit by consent?

As with most family law issues, maintenance pending suit can be agreed by consent. If both spouses can reach an agreement there is no need for court involvement. Again this option saves time and added costs. Our family lawyers have experience in dealing with maintenance pending suit. We can assist you in trying to reach an agreement with your spouse.

What happens once a financial order application form is submitted to the court?

Once the financial order form has been completed, it will need to be submitted to a local family court. The family court will then review the financial order application form and list the matter for a court hearing to allow the courts to consider the financial order form. The respondent spouse must also file a statement of their income means prior to the court hearing as this will be taken into consideration when reviewing any application for a maintenance pending suit order.

This hearing usually lasts for one hour and allows the judge the opportunity to review the financial needs and decide on whether the respondent spouse must pay maintenance to the applicant spouse until the divorce is finalised. If an application for a maintenance suit is successful, the court will also order on the amount of financial payments which are to be made. The courts under their discretion have the ability to backdate a maintenance suit order to when the divorce petition was filed.

At Kabir Family Law our divorce law specialists can advise you in completing and submitting your financial order form as well as prepare you for the hearing.

What do the courts consider when dealing with a maintenance pending suit?

It is important to note that the courts will take into account the income and the expenditure of the spouses involved. As the respondent spouse who is required to make payments will have provided a statement of their income means this will be considered by the court alongside the basic expenditure needs of the spouse making an application for the periodical payments.

Both spouses will therefore need to submit a detailed breakdown confirming their income and expenditure which is to include mortgage repayments, household expenses and costs of day to day living.

The court will also take into account the standard of living during the marriage and prior to the separation when considering granting an order for maintenance pending suit.  As well as the above the court will also consider when the applicant spouse is the primary carer of a child. If so, this is likely to encourage the courts to make an order for maintenance pending suit given that the welfare of children are of paramount interest in court matters.

When granting an order for a maintenance pending suit the courts will only consider the basic needs of the spouse and whether it is fair and reasonable in the circumstances for the such payments to be made as the purpose of this order is to provide financial support until the divorce is finalised. Our divorce law specialists have assisted many spouses in successfully obtaining a maintenance suit order and if you require the same contact us to see how we can assist you.

What are the benefits of applying for maintenance pending suit?

The main benefit of applying for maintenance pending suit is that it allows the spouse to meet cash flow problems. Such problems may arise during the divorce. One partner may not be able to afford the mortgage or their legal fees.

Maintenance suit is also advantageous where one spouse does not work. This could be due to looking after the family whilst the other spouse earns an income. Another advantage is that maintenance pending suit does not affect working tax credits. However it does affect income support, housing benefit and council tax benefit.

Another advantage of maintenance pending suit is that no tax is payable by the receiver. There is also a disadvantage for applying for maintenance pending suit. As financial payments are made, this effectively reduces the financial pot. This results in there being less finances available to settle upon conclusion.

How long does maintenance pending suit last for?

Many people assume maintenance pending suit lasts forever. This is incorrect. So how long does maintenance pending suit last for? The court makes a final adjustment of the finances at the final hearing. At this time the financial order made by the court replaces the maintenance pending suit.

Essentially maintenance suit lasts until the proceedings conclude. The courts however do have the power to backdate the maintenance pending suit. These payments can be backdated to the date of the divorce application.

How to calculate maintenance pending suit?

There is no set formula for calculating maintenance pending suit. The court orders the maintenance pending suit which it believes is reasonable. The court will consider the income and expenditure of the spouse. The hearing for maintenance suit usually lasts for one hour.

The courts therefore take a broad view when ordering payments. The courts do take into consideration the living standard before the separation. However this is not intended to be replicated. The order for maintenance will state how much periodical payments are to be made. These payments will last until the divorce is finalised.

How are payments for maintenance pending suit made?

Maintenance pending suit payments are usually made by standing order. The payments are made as arrears unless the court state the payments should be made in advance. Maintenance pending suit payments are made directly to the spouse.

They cannot be paid indirectly such as mortgage payments. If payment is required to cover legal fees or mortgages they are still paid directly to the spouse. The receiving spouse will then make the payments as needed.

What is variation of maintenance order?

Quite often when spousal maintenance or maintenance suit orders are made the circumstances of the parties may change. The law recognises that circumstances may change. Therefore there is a provision for variation.

Where a change is required this is known as a variation of maintenance order. A variation of maintenance order can be requested by either the spouse receiving or the spouse paying the maintenance. The spouse making the payments may argue their circumstances have changed. They will need to prove that they are facing hardship. As a result of which they cannot continue making the payments order.

For a partner receiving the order there might be some difficulties in applying for a variation.

The court would have assessed their needs and income. If there is a considerable change in their circumstances then a variation may be considered.

When can a variation of maintenance be made?

A variation of maintenance is made when there is a significant change in financial circumstances.

This covers situations as losing your job or becoming ill. In such occasions either the party receiving the payment or making the payment can apply. a spouse making the payments may have other children.

This could result in them being unable to continue making the payment. They can also apply for a variation of maintenance. The court has the ability to vary the payments upwards, downwards or order the payments to remain. 

How to pursue an application for variation of maintenance order form?

In order to pursue an application for variation of maintenance order form the party will need to complete a Form A. The party making the application will also need to pay the court fee to process the application. The fee is currently £240.00. Once the application has been submitted a form E will also need to be completed.

This will be completed by both parties. Form E is a lengthy document which requires the financial information. The courts do not take such applications lightly. It is therefore advisable to seek legal advice early.

At Kabir Family Law we can advise on the prospects of such applications. We can also assist you in completing your application to the family court.

What to consider before completing an application for variation of maintenance order form?

It is extremely important that careful though is given prior to applying for a variation of maintenance order form. Courts will only make a variation where there has been material change.

It is therefore important to consider whether your change in circumstances will be seen as material.

Timing of any application is a key consideration. If an application is made too soon after the original order it may be difficult to pursue. In such a scenario there must be a sudden and unexpected change in circumstances.

You must also ensure that any application is not delayed following a change. If there is a delay the courts may feel that the change does not warrant a variation. If a party has been coping following a change then is a variation necessary?

As each family’s situation is different it is important for legal advice to be sought early to assess your position.

Legal advisers will also be able to advise you on whether it is proportionate to make an application to vary when compared to the costs associated with the application.

Where to submit an application for variation of maintenance order form?

Quite often parties submit an application for variation to the court which dealt with the original maintenance order.

However such applications can also be submitted to the local family court. This is usually the case where parties may have relocated following the original order.

Dangers of a poorly drafted and prepared application for variation of maintenance order form

If an application is prepared or presented poorly this can have significant effects on the outcome. Costs are a significant factor when applying for variation. Costs can quickly become disproportionate to the amount of maintenance claimed. This can result in cost orders against the party making the application.

At Kabir Family Law our specialists have first-hand experience of dealing with poorly drafted applications. It is extremely important where possible you seek legal advice. At Kabir Family Law we can assist you in your variation application. We can also prepare you for any hearings and advise you of the prospects at the start. Contact us today for a free initial no obligation consultation.

Common questions about maintenance pending suit

What is an application for variation of maintenance order form? 

An application for variation of maintenance order form is an application which is usually made to vary the terms of an order made in relation payments owing for the upkeep of expenses.

An application for variation of maintenance order form can be made by the party paying the maintenance if their circumstances have changed or the party receiving the maintenance if they fail the maintenance payments are not enough.

The most common circumstances in which an application for variation of maintenance order form is considered if the party who is paying for maintenance has had a change in financial circumstances such as losing a job or a reduction in income or whether they have had other children and relationship and therefore it is difficult to continue making the payments for maintenance.

In order to make an application for variation of maintenance order form, the Form A must be completed and sent to the court with the fee for filing. Parties will also need to provide details of their income and expenditure which will be considered at a hearing. Before the court approves any application for variation of maintenance order form.

The courts have the power to either vary the order by increasing the payments, reducing the payments or suspend or cease the order.

Arrange a consultation with our family law specialists today

Contact our family law specialist today us for immediate legal advice today on 0330 094 5880 if you are not in receipt of adequate financial support during your separation.