Interim Maintenance and Legal Services Payment Orders

With the cost of living going up, our Senior Solicitor, Lara Hooper, looks at the different types of financial provisions that could help you survive your divorce and even cover some of your divorce costs.

Maintenance Pending Suit

Interim maintenance is a type of financial support paid by one spouse to another amid ongoing divorce proceedings. The aim of this is to provide immediate support to the financially weaker party until the conclusion of the financial proceedings.

Interim maintenance often takes the form of Maintenance Pending Suit, other wise shortened to “MPS”. These proceedings are most appropriate for cases where one party has, as an example, remained in the matrimonial home but the other party may have vacated and stopped contributing to the monthly expenses on the property. This often leaves the residing party at a loss and may ultimately cause them to go into debt.

In circumstances such as this, the party at a detriment can make an application at any time on or after the presentation of an application for divorce, dissolution of civil partnership, nullity, judicial separation or a civil partnership separation order.

An application notice is issued in accordance with the Family Procedure Rules 2010, SI 2010/2955, Pt 18 and is accompanied by a sworn statement explaining why the Applicant believes the MPS Order is necessary. The Statement must also set out details of the Applicant’s means, incomings and outgoings, and must be submitted to the court with a draft of the Order the Applicant is asking the Court to make. In circumstances where a Form E has already been sworn and submitted, this will often suffice as evidence of means, although it is always good practice to submit a short statement in support of the application in this scenario. The Respondent to the MPS application should file a sworn statement in response, which may include setting out their financial position, not less than seven days before the hearing (unless they have already sworn their Form E).

The court will list a hearing to determine the MPS application and, if successful, will make an award which may take the form of monthly payments or a lump sum contribution which would be effective from the date of the Order.

Legal Services Orders

Another option available to some parties is what is known as a Legal Services Order. Sections 49–54 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 introduced changes to the Matrimonial Causes Act 1973 and the Civil Partnership Act 2004 permitting the Court to order a Respondent in these types of applications make payment to the Applicant strictly limited to use towards legal costs, known as a legal services order. This type of application is available to financially weaker parties in matrimonial finance proceedings.

A leading case on Legal Services Orders is Rubin v Rubin [2014] EWHC 611 (Fam), [2014] 2 FLR 1018, where guidance was set out the making of an application for LSOs. Essentially, all LSO applications should be approached and considered with caution where the claim for relief appears doubtful. The court is unable to make an order unless it is satisfied that without the financial contribution the Application would be unable to access appropriate legal advice.

In considering LSO applications, the court will give consideration to whether the Applicant is able to source funding from alternative sources (such as a litigation loan, bank loan etc) but the court would be unlikely to expect an Applicant to sell, re-mortgage or charge their home or to deplete modest savings in order to do so.

The court will often expect to be provided with evidence that prior applications for litigation loans have been refused by reputable commercial lenders.

If an LSO is granted by the court, these can take the form of either a large one-off payment, monthly payments, payments for a certain period of time, or deferred payments. As LSOs are designed to provide for future legal costs, they are often provided up to certain key points in the proceedings, such as a Financial Dispute Resolution Appointment (where 90% of cases usually settle).

As with applications for MPS, applications for LSOs can be made at any time on or after the presentation of an application for divorce, dissolution of civil partnership, nullity, judicial separation or a civil partnership separation order. A party can apply for an LSO whether they are the Applicant or Respondent in the financial proceedings.

For both MPS and LSO applications, attendance at a Mediation Information and Assessment Meeting (MIAM) is normally required prior to filing the application but there are exceptions to this requirement.

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For more information regarding contested financial proceedings and the possibility of applying for either MPS or an LSO, please contact our Llanelli office on 01554 756952 to arrange a free 15-minute appointment.