During the course of your divorce, situations may arise where there is a disparity in income between you and your former spouse.
This commonly arises in instances where one party has developed and progressed well within a career and the other party who is ‘financially weaker’ was unable to do so as they invested their time into family life, perhaps ceasing work completely in order to do so.
The disparity in income may mean that following separation, whilst one party is able to carry on as normal, the other is required to make significant concessions in order to make ends meet and finds themselves in a situation where they are unable to support themselves financially.
In such situations, it can be possible to make a claim for maintenance pending suit, commonly also known as ‘interim maintenance’ or ‘MPS.’
What is MPS:
Under s22 of the Matrimonial Causes Act 1973, MPS is periodical payments ordered to be made by one party to the other for their maintenance, and for a specific length of time.
What will MPS Payments cover?
The payments are usually made on a monthly basis for the sole purpose of the other party’s maintenance and daily living expenses; essentially to meet the receipient`s interim income needs. The aim is not to provide for any children of the marriage by way of MPS payments, or for the Applicant’s legal fees. (separate payments can be sought for the same).
How long do MPS Payments last for?
MPS payments conclude upon settlement of the matrimonial finances between the parties and/or Final Order of the divorce and do not continue on following the divorce.
Am I entitled to MPS Payments from my spouse?
Where one party is experiencing financial difficulty, it may be agreed between the parties that the other will provide regular monthly payments to assist them with living costs.
If no agreement can be reached between the parties, then MPS applications are made to the Court. This is a remedy open to either party, provided they are able to demonstrate that their financial needs are such that MPS is necessary.
Upon receiving the application, the Court will need to assess whether:
- It is appropriate in the circumstances for MPS to be paid
- If so, the amount and frequency of payments required based upon the overall income / outgoings of both parties.
What should I consider before making an application to the Court for MPS?
Before making an MPS application to the Court it is important to consider the merits and pitfalls of the potential application.
In the event MPS is awarded, it can impact eligibility and entitlement to certain state benefits such as income support.
It is important to compare your financial position with the other party’s to ensure that there is scope for an MPS order to be awarded by the Court. In situations where your respective financial positions are similar, it is unlikely for MPS to be ordered by the Court. The starting point is to consider your respective Form Es and income information provided within.
MPS Applications can be quite costly and in the event it is not successful, you will likely be ordered to pay the other party’s costs which would inevitably impact your existing financial situation.
In cases where there is not an extensive amount of funds or assets between the parties, it may be somewhat disproportionate to commence an MPS Application as MPS is usually only paid for a number of months, until conclusion of matrimonial finances.
What are the benefits of making a MPS Application?
The aim of MPS Orders is to deal with “short-term cashflow” issues between the parties. If you are successful in the Application at Court, you will be awarded a regular sum of money, during the course of proceedings which will assist you in supporting yourself until the matter is concluded.
MPS Orders can be backdated to the date of the divorce application.
You will establish to the Court that you require a certain level of funds going forwards following conclusion of the divorce proceedings, which will assist your general position in regards to financial matters. Following conclusion of matrimonial finances, it may be considered appropriate for you to receive alternative financial provision such as spousal maintenance.
What is the process of an Application to the Court for MPS?
You should seek legal assistance if you are intending to make an application to the Court for MPS.
The Application is made via Form A which must be completed and lodged with the Court alongside the necessary fee. Alongside the Form, you will need to file a statement to the Court explaining why you consider the MPS Order is necessary.
A draft Order should also be lodged with the Court for Approval.
Once the Court have received the application, they will list the matter for a Hearing.
The Respondent will also be required to lodge a Statement in Response in advance of the Hearing.
The Hearing will take place usually for 1 hour. During this time, the Court are required to take a broad view of the issues in order to reach a conclusion.
What circumstances will be considered by the Court regarding an MPS Application?
Primarily, they will need to establish that the Applicant does have a need for financial assistance. This will need to be evidenced to the Court by way of a Schedule of Income Needs which clearly lay out the Applicant’s financial incomings and outgoings.
It must then be considered against the Respondent’s ability to make MPS Payments. They will also be required to provide to the Court a Schedule of Income Needs detailing what their own incomings and outgoings are.
Provided the Respondent has provided an accurate picture of their financial situation, and their own financial needs are such that MPS payments would not be reasonable, it will not be awarded.
The Court will take into account the standard of living enjoyed by the parties’ during the course of the marriage. Provided it is established that there is sufficient need for MPS Payments, and one party continues to enjoy a significantly better standard of life than the other, it may be a case that the Court orders MPS payments. Of course, it is important to bear in mind that commonly during separation, both parties’ respective standard of living is impacted to an extent and it is not always possible for both to enjoy the exact same standard of living during separation.
How will the Court calculate MPS?
Described as a “rough and ready” approach; there is no specific calculation used by the Court when assessing what sum of MPS should be awarded to the Applicant.
The Court will consider all relevant circumstances of the parties before reaching a conclusion that it deems to be ‘reasonable.’
This will impact the amount to be paid, and the frequency of payments.
How will MPS payments be made?
MPS payments are made directly by the Respondent to the Applicant by way of a standing order.
It is not possible for the Respondent to make these payments indirectly, such as by way of mortgage re-payments or payments towards any debt the Applicant may have. They must be paid directly to the Applicant who can then allocate the funds as necessary.
Can the MPS order be varied?
As parties’ respective circumstances develop, situations may arise where variation of the existing MPS Order is necessary. This is built into the existing order which will make provision for variation.
Who can apply for the MPS Order to be varied?
Either the Applicant or Respondent can make an application for the existing order to be varied.
For instance, the Applicant may require the Order to be varied if the Respondent’s financial situation improves, and the existing provisions are inadequate in meeting the Applicant’s needs.
The Respondent may be required to make an application for variation if their financial situation has worsened and accordingly, they cannot make the required payments. This could include losing their job or becoming unwell, impacting their earning capacity.
The party applying will follow the same procedure as making the original application to the Court, who will list the matter for a Hearing.
The Court will need to consider the parties’ respective needs and income again. Provided the Court is satisfied that there has been a significant change in circumstance, then variation may be ordered. This may mean that payments are increased, decreased or stay the same.
Costs are a central factor in deciding whether or not to proceed with an MPS or MPS Variation Application. The general principle that each party bears their own costs does not apply to such applications. It may be a case that if an Application is made without adequate preparation and consideration of the risks involved, it could be unsuccessful and a costs order made against you.