Rattan v Kuwad

Factual and Procedural Background

The parties married in 2009 and have two children, one from the wife's previous marriage and one from their marriage. The wife originally lived in Canada and later moved to England. The husband worked as an IT consultant through a corporate vehicle, while the wife requalified as a teacher and worked as such both during and after the marriage. The parties separated in March 2019, with the wife and children remaining in the former matrimonial home.

The wife commenced divorce and financial remedy proceedings in April 2019. Early in the proceedings, the husband was ordered to pay the wife an immediate sum to cover living expenses. The wife applied for maintenance pending suit, including school fees, supported by a budget reflecting her income needs. The husband responded with a statement indicating loss of employment and financial difficulties, including debts and transfers of funds abroad.

The initial hearing for maintenance pending suit was held on 1 October 2019 before Deputy District Judge Morris, who made an order for maintenance at £2,850 per month. The husband appealed this order, arguing procedural and substantive errors, particularly regarding the financial analysis. His appeal was allowed by a judge on 6 January 2020, who set aside the DDJ's order principally on the basis that the DDJ had failed to critically analyse the wife's immediate expenditure needs and had erred by including school fees and ordering a mortgage change. The wife then appealed this decision, which is the subject of the present judgment.

Legal Issues Presented

1. Whether the Deputy District Judge appropriately applied the law in assessing the wife's application for maintenance pending suit, including the requirement for a critical analysis of immediate expenditure needs.
2. Whether school fees can be included as part of maintenance pending suit.
3. Whether the court has the power to order a change in mortgage terms as part of maintenance pending suit.
4. Whether the appellate judge was correct to set aside the DDJ's order without making an alternative maintenance order.

Arguments of the Parties

Appellant's Arguments (Wife)

• The DDJ correctly undertook a broad assessment of what was reasonable maintenance pending suit under section 22 of the Matrimonial Causes Act 1973.
• The Judge erred in requiring a more detailed critical analysis of her budget, which was a straightforward list of basic income needs already set out in her Form E.
• She sought only her basic income needs, which included school fees; these are legitimate immediate expenditure needs and can be included in maintenance pending suit.
• The Judge's exclusion of certain items (e.g., TV licence) as not immediate was impractical and unrealistic, as she could not return to court for each such item.
• The mortgage term change was to her detriment and to the husband's benefit; the DDJ's approach was reasonable.

Respondent's Arguments (Husband)

• The Judge was correct to find that the DDJ failed to critically analyse both parties' budgets, particularly the wife's claimed immediate needs.
• Some items in the wife's budget, such as dentist, house insurance, and house alarm, were not immediate needs and should be excluded.
• Maintenance pending suit should only be ordered when necessary, reflecting a fair and reasonable approach.
• The DDJ was not entitled to order the mortgage change or include school fees in the maintenance pending suit order.

Table of Precedents Cited

Court's Reasoning and Analysis

The court considered the statutory framework under section 22 of the Matrimonial Causes Act 1973, which empowers the court to make maintenance pending suit orders that it "thinks reasonable" to meet immediate needs. The court emphasized that such orders are intended to provide short-term financial support during proceedings and typically require a pragmatic, "rough and ready" approach rather than detailed financial scrutiny.

The appellate court disagreed with the judge below who had found that the Deputy District Judge (DDJ) failed to critically analyse the wife's income needs. The appellate court found that the DDJ had sufficiently assessed the wife’s budget, which was straightforward and reflected her reasonable income needs. It rejected the judge’s exclusion of certain items as not immediate expenditure, explaining that averaging expenditure over time is appropriate and practical for maintenance pending suit.

The court also held that school fees can properly be included as part of maintenance pending suit, rejecting the judge’s view that they were long-term expenses unsuitable for such an order.

Regarding the mortgage instalments, the court noted this issue was no longer relevant but observed that the DDJ’s approach benefited the husband by reducing the wife’s income needs, and any failure to effect this could have justified increased maintenance payments.

The court concluded that the DDJ had considered the parties' respective cases and resources and reached a fair and reasonable decision. Therefore, there was no basis for the judge to interfere with the DDJ’s order. The court also criticized the judge for allowing the appeal without making an alternative maintenance order, noting the importance of addressing immediate needs given the delay in final financial remedy hearings.

Holding and Implications

The appeal was ALLOWED. The order of the judge setting aside the Deputy District Judge's maintenance pending suit order was set aside, including the costs order. The original maintenance pending suit order made by the Deputy District Judge was restored except for the paragraph relating to the mortgage instalments.

The direct effect is that the wife’s maintenance pending suit order remains in place as originally determined by the DDJ, ensuring her immediate income needs are met pending final resolution of the financial claims. No new precedent was established; rather, the decision reaffirmed established principles on the assessment of maintenance pending suit applications, emphasizing a broad, pragmatic approach to immediate needs and rejecting overly detailed critical analysis where unnecessary.