Maintenance pending suit, reminder of principles and Peel J, and amendment of standard orders

This article brings news that Peel J will be the national lead judge for the Financial Remedies Court and the judge-in-charge of standard family orders with effect from 26 April 2022 and refers to his recent decision in MG v GM 2022 EWFC 8.  A refreshingly short judgement of 57 paragraphs.

Also Mostyn J has announced the following to take account of the new divorce provisions ‘The orders to be amended are standard order 1.1 (financial directions order—longer version), standard order 1.2 (financial directions order—shorter version) and standard order 2.1 (financial remedy order—omnibus). The changes will take effect on 6 April 2022’

In MG V GM the main issue was whether W was entitled to bring divorce proceedings in England, but at this hearing Peel J dealt with the following issues:-

  • Jurisdictional dispute and interim orders
  • Maintenance pending suit (mps)
  • Legal services order

Each party alleged that the other had considerable wealth but denied having wealth themselves, as the judge said ‘this is a case where the parties agree on nothing’ and ‘they each accuse the other of being bent on a path of destruction’ and ‘each says that the other is a barefaced liar’.  The judge decided the issues on submission, assisted or not by the bundle being over 1000 pages long.

Peel J said that the fact that jurisdiction is in dispute does not prevent the court from making an interim order, although the court must be cautious.

The judge then considered mps and cited Mostyn QC as he then was in TL v ML 2005 para 124.  I recite it as a reminder, and is the main reason for this short article.

‘From these cases I derive the following principles:

  1. i) The sole criterion to be applied in determining the application is "reasonableness" (s22 Matrimonial Causes Act 1973), which, to my mind, is synonymous with "fairness".
  2. ii) A very important factor in determining fairness is the marital standard of living (F v F). This is not to say that the exercise is merely to replicate that standard (M v M).

iii) 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 on a final hearing (F v F). That budget should be examined critically in every case to exclude forensic exaggeration (F v F).

  1. iv) Where the affidavit or 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 (G v G, M v M). In such a situation the court should err in favour of the payee.
  2. v) Where the paying party has historically been supported through the bounty of an outsider, and where the payer is asserting that the bounty had been curtailed but where the position of the outsider is ambiguous or unclear, then the court is justified in assuming that the third party will continue to supply the bounty, at least until final trial (M v M).’

The judge then recited the principles regarding legal services orders enunciated by Mostyn J in Rubin v Rubin [2014] EWHC 611 which are too lengthy for this short article.  However the judge did make a LSO.

For us practitioners, shorter judgements are to be welcomed.  Since I started at the Bar, judgements have increased in length, but perhaps the law has got more complex, even though the Supreme Court has tried to simplify financial remedy law.