Following the comments of Mr Justice Mostyn in relation to spousal maintenance in SS v NS (spousal maintenance)  EWHC 4183 (FAM) Mr Justice Moylan has now dealt with the somewhat thorny issue of interim maintenance in the recently reported family case of BD v FD  EWHC 4443 (FAM).
This was a case of a couple who married in 2002 and separated in 2013. There were four children of the family aged between 3 and 8. The husband had non-trust assets of £49 million and trust assets of £100 to £130 million together with an income of £1.7million net per annum. The wife had assets of £2.9 million (which was the value of her new home) together with £1.4million in cash and investments.
The wife was seeking interim maintenance of £392,000 per year. In total the husband was paying £202,000 which was broken down as a payment of £167,000 to the wife plus additional expenses.
Mr Justice Moylan reviewed the previous case law on interim maintenance and at paragraph 33 of his judgment he says that he derives the following principles:
- The sole criterion to be applied in determining the application is reasonableness which, to my mind, is synonymous with fairness.
- A very important factor in determining fairness is the martial standard of living. This is not to say that the exercise is merely to replicate that standard.
- In every maintenance pending suit application there should be a specific maintenance pending suit budget which excludes capital or long term expenditure more aptly to be considered at a final hearing. That budget should be examined critically in every case to exclude forensic exaggeration.
- Where the affidavit of Form E disclosure by the payer is obviously deficient the court should not hesitate to make robust assumptions about his ability to pay. The court is not confined to the mere say so of the payer as to the extent of his income or resources. In such a situation the court should rule in the favour of the payee.
Mr Justice Moylan went on to make some general remarks about the use of interim applications in divorce cases and was at pains to explain what the purpose of those are, what can be achieved (and what is best left for a final hearing) and that in reality they should be avoided if at all possible. He echoed the sentiments in G V G which was an interim application under Schedule 1 of the Children Act 1989 in that “interim hearings are an expensive and, in my view, they should be pursued only when, on a broad assessment, the courts intervention is manifestly required. The jurisdiction to make an interim award is very broad jurisdiction”.
In this case the husband asserted the wife’s budget was manifestly exaggerated and bore no real resemblance to the standard of living during the marriage.
A number of items were drawn to the court’s attention including her estimated expenditure on holidays and weekend breaks, clothes, shoes and jewellery, outings, restaurants and entertaining. The court was unimpressed and found that on forensic examination the budget sum substantially exceeded the marital standard of living and there was no reason why that should have been exceeded.
The court also went on to say that this was not a case where the court’s intervention was required.
Thus an order was made in the terms proposed by the husband i.e. that he continue to pay at the level he was.
Maguire Family Law have previously blogged in relation to the issue of spousal maintenance generally and that blog can be found here.
Often upon separation people are more concerned about the immediate needs of themselves and their children and how those will be met. This is particularly the case where one party has a significantly greater income (and/ or assets) than the other. Interim maintenance is a useful tool in those types of situations but as the above shows it should not make an interim maintenance application unless they can be avoided. In reality most issues regarding interim maintenance are actually capable of being agreed between the parties with some negotiation through specialist family law solicitors.