Family Solicitors

Section 22 of the Matrimonial Causes Act 1973 allows an application for maintenance pending suit (maintenance during Court proceedings). If an order is granted, the Court can require one party to the marriage to pay periodical payments to the other party for such a term as the Court thinks reasonable. The term cannot start before the date of the presentation of a petition and ends on the date of the determination of the case.

The applicant must demonstrate their specific need in the form of a budget. There should also ideally be full disclosure of the respondent’s income and assets at the time so the Court is aware of the parties’ income and can make an order.

Apart from the usual outgoings such as housing costs, food, travel etc, legal costs can also be a part of a claim for maintenance pending suit. In Currey v Currey (No 2) the Court of Appeal held that the applicant must demonstrate that they are unable to procure any other means of funding and that they are unable to deploy their assets directly to pay legal costs or raise a loan commercially or otherwise.

In AvA (Maintenance Pending Suit: Provision of Legal Fees) it was held that the words of section 22 of the Matrimonial Causes Act 1973 are wide enough to empower the Court to include an element towards the applicant’s costs of the suit if it is reasonable to do so. However, the Judge did exercise caution in including such a costs element in orders for maintenance pending suit.

Therefore, if you have a client whose means or capital do not afford them public funding or a loan, consideration could be given to making an application to cover legal costs if the respondent’s means are sufficient. This would enable both parties to have equality of arms when dealing with their matrimonial finances.