Rattan v Kuwad (Rev 1)

On an application for maintenance pending suit, the sole substantive criterion under Matrimonial Causes Act 1973, section 22, is whether the order is reasonable, which equates to fairness. The court should make a broad and pragmatic assessment of the parties’ needs and resources, tailored to the circumstances and available evidence.

“Immediate” needs are those arising pending final resolution. They can include expenditure averaged over time and school fees. A separate interim budget and detailed critical analysis are required only where the circumstances demand them. The court need undertake no more scrutiny than is necessary to conclude that the award is reasonable.

The wife sought maintenance pending suit following separation and the commencement of divorce and financial remedy proceedings. A deputy district judge ordered the husband to pay £2,850 per month, having assessed the wife’s stated needs, her income, the husband’s needs and his resources.

On the husband’s first appeal, a circuit judge set aside that order. He considered that the deputy district judge had failed critically to analyse the wife’s immediate expenditure needs, had wrongly included school fees and had made an impermissible provision concerning the mortgage. He made no substitute maintenance order.

On the wife’s second appeal, the central issue was how a court should identify and assess “immediate” needs when determining reasonable maintenance pending suit under section 22 of the Matrimonial Causes Act 1973.

1. Appeal allowed unanimously. The deputy district judge’s maintenance pending suit order was restored, except for the provision concerning the mortgage. The circuit judge’s order, including his costs order, was set aside.

2. Section 22 of the Matrimonial Causes Act 1973 confers a broad power to order such maintenance as the court thinks reasonable. Reasonableness equates to fairness. The jurisdiction enables an expeditious order to meet income needs when the evidential picture may remain incomplete. Its exercise is guided by authority, but the only substantive statutory requirement is that the resulting order be reasonable.

3. The purpose of maintenance pending suit is to meet immediate needs pending final resolution. “Immediate” does not restrict an award to expenditure incurred every month. Budgets commonly average annual or irregular expenses because maintenance is usually paid monthly. Excluding such expenses would be unrealistic and inconsistent with the broad assessment required.

4. The necessary scrutiny depends on the case. The court should consider the parties’ respective needs and resources and, where relevant, their marital standard of living. It need not subject every budget to a detailed or specially “critical” analysis. A straightforward Form E budget may itself provide an adequate statement of interim needs. The deputy district judge was entitled to accept the wife’s listed needs as reasonable on a broad assessment.

5. School fees may constitute income needs and may be included in a maintenance pending suit order. There is no principle requiring them to be pursued through a separate application.

6. The deputy district judge sufficiently assessed the husband’s needs and resources and was entitled to find that he could meet the wife’s reasonable shortfall as well as his own needs. There was therefore no proper basis for appellate interference.

7. Where an appellate court allows an appeal against maintenance pending suit, it should, where appropriate, determine what substitute order should be made. That approach reflects the jurisdiction’s purpose of meeting current needs and avoids further delay.

1. Court of Appeal (Civil Division): The wife’s second appeal was allowed unanimously in [2021] EWCA Civ 1. The circuit judge’s order, including the costs order, was set aside. The deputy district judge’s maintenance order was restored except for the mortgage provision.

2. Central Family Court, circuit judge: His Honour Judge Oliver allowed the husband’s appeal and set aside the maintenance order. He found insufficient critical analysis of the parties’ needs, wrongly included school fees and an impermissible mortgage provision. He made no substitute maintenance order.

3. Central Family Court, deputy district judge: Deputy District Judge Morris ordered the husband to pay maintenance pending suit of £2,850 per month.