Rattan v Kuwad: As we were!

Grainne Fahy, family lawyer and IAFL Fellow and Head of Family Law at BLM gives her thoughts on the recent case of Rattan v Kuwad [2021] EWCA Civ 1.

I think we can all agree that an application for maintenance pending suit is urgent by its very nature. It is designed to bridge the gap between the application being issued and the final order being made, so that the needs of the financially non-dominant spouse and children are met in the interim.

Section 22 of the MCA 1973 gives the court power to make an order for maintenance during the course of proceedings. It provides:

1) On a petition for divorce, nullity of marriage or judicial separation, the court may make an order for maintenance pending suit, that is to say, an order requiring either party to the marriage to make to the other such periodical payments for his or her maintenance and for such term, being a term beginning not earlier than the date of the presentation of the petition and ending with the date of the determination of the suit, as the court thinks reasonable.

Clearly the intention of this very broad statutory power is to ensure that the immediate income needs of the financially less dominant spouse and the children are not only met but that they are met expeditiously often at a time in the proceedings when the full financial picture is not clear. Crucially, if the disclosure of the payer is obviously deficient, as was the position in Mr Kuwad’s case, the court should not hesitate to make robust assumptions about his ability to pay.

Stripping back the budget – what is reasonable?

We all know that we need to pare down the budget to cover the essentials only. In order to have the best chance at success, and unless we are dealing with the high-net-worth (HNW) or the ultra-high-net-worth (UHNW), we usually strip the budgets right back; off come the holidays and any other luxuries from the Form E budget; to be revisited when the final suit is being dealt with. With that comes its own issues, particularly if the receiving spouse does manage quite well in the intervening period!

We are guided by case law and principles and as always reasonableness and fairness prevail. We consider immediate needs only. We scrutinise the parties’ respective needs and resources and balance that against the “marital standard of living”. However, over the years there have been criticisms of the court’s decisions in these interim applications, on the basis that the analysis is often too “rough and ready”. But maybe that’s the whole point? It is “rough and ready”; it is designed as such; to bridge what one hopes to be short term cash flow issues, occasioned by the separation and to be resolved at the conclusion of the proceedings.

What have we got to show?

By the time the case in hand had reached its 2nd appeal, there had elapsed just over 14 months since the first instance decision of DDJ Morris and 11 months since the decision of HHJ Oliver, whereby he allowed the husband’s appeal against the first instance decision. HHJ Oliver set aside the order for MPS made by DDJ Morris on the basis that the DDJ had “failed to apply the law appropriately” in that she had not undertaken any “critical analysis of the wife’s needs”, in particular her “immediate expenditure needs”, the inclusion of school fees and the assumed reduction of the mortgage payments in the sum of £600 per month. The judge acknowledged that there was a need for maintenance but did not determine the alternative amount. Not a very helpful interference of the order of DDJ Morris!

In his judgment of the 2nd appeal, Lord Justice Moylan refers to the case having had “a very regrettable procedural history” and goes on to say that “it is an understatement to say that this appeal has not been addressed with appropriate expedition.”. This could not be a truer assessment of the plight of Ms Rattan, who then experienced considerable delays in the main suit, making the issue of the interim maintenance all the more pressing, and indeed for a longer period of time than anyone would wish for. I do not intend to go into detail of the litany of delays here but I am sure you can all relate.

Lord Justice Moylan concluded that this was not an unduly complex case and did not in fact require the extensive analysis that was proffered as a necessity. He disagreed that there ought to have been a “critical analysis of the wife’s needs” and indeed confirmed that the DDJ undertook a sufficient analysis in the first instance. It is worth noting that the budget was not extensive, nor was the interim maintenance sum high and when we come to the point of arguing about whether £12.50 per month for a television licence is reasonable or not, in my view we are overthinking, at considerable expense. This must fly in the face of the requirement for a broad analysis.

He went on to say, and which is rather helpful, that the schedule provided need not be distinct from that set out in Form E and rather shows that indeed Ms Rattan had not exaggerated her Form E income needs and had indeed even there only sought a sum to meet her basic needs. This is an unusual point and one I must bear in mind. In addition to that he concluded that the DDJ was not in fact wrong to include the school fees as part of the maintenance order. There is no reason in principle why they can’t form part of the immediate needs and there is no need for a separate application. In relation to the mortgage payment reduction, Lord Justice Moylan accepted the position as submitted by the wife, in that this actually benefitted the husband. The order of the DDJ ought not to have been interfered with. It had been properly reached. But in the case that it is interfered with, it is plain wrong for the Judge to have left it there, to have considered that it should be set aside, that maintenance was required but not to offer an alternative figure.

The problems we face…

This case highlights the problems that we all experience in the family courts more than any I have read for some time. The delays, costs and risk of litigation, the failure of some judges to finish the job; set alongside a position where the litigation costs more than likely exceeded the extent of the interim maintenance provision. In my view, this is nothing short of an utter nonsense! And what have we got to show? As we were!