AT v NB (Maintenance Pending Suit)

This is my judgment in respect of the applicant wife’s application for interim maintenance (‘maintenance pending suit’) pending a final decision in respect of her application for a financial order on divorce.

There is a rather sorry history to this application, which was first issued by the wife in April 2024. The maintenance application took over the entirety of the First Appointment, indeed it appears to have filled the judge’s entire morning, and even then she had to reserve judgment to hand down another day. It appears that the parties agreed (presumably for expediency) that the judge would give only short written reasons for her decision.

The husband, unhappy with the judge’s order, promptly appealed her decision arguing that she had given insufficient reasons for reaching the conclusions that she had. On appeal, His Honour Judge Richard Clarke criticised both parties for failing to seek clarification from the judge before appealing, and observed that the parties appeared to have agreed to brief reasons being given, but ultimately accepted that the judgment had provided so little reasoning that he could neither uphold the original order nor replace it with an alternative outcome of his own.

Thus, the matter comes before me for a rehearing some 14 months after first issued, with the parties having now spent in the region of £65,000 on the issue of interim maintenance and £250,000 overall. This in the context of a total assets said by the wife to total £2m and the husband to total £750,000.

There does not appear to be much in this case that the parties agree on, but they do at least appear to agree on the law I am to apply. The applicable principles were summarised by Moylan LJ in Rattan v Kuwad [2021] EWCA Civ 1 and include the following:

There is a second matter on which the parties are agreed. The week following this hearing the parties were due at a tribunal hearing arising out of their respective challenge and counter-challenge to the level of child maintenance calculated by the Child Maintenance Service. As the outcome of that hearing would impact both parties’ income positions, they both took the pragmatic and sensible view that any interim maintenance order I make should be structured as a global figure for child and spousal maintenance from which any CMS payments could be deducted on a pound-for-pound basis.

There is so little that these parties agree on that it is difficult to give too much of an overview without quickly getting bogged down in disputed issues.

The husband is in his early seventies and the wife in her mid-fifties. They married in 2009 and separated in 2022, with the husband moving out of the family home. They have one child together, D, who is 16 and has just finished her GCSEs, who lives in the family home with the wife. The husband has been living with his very elderly mother while awaiting the conclusion of these proceedings.

H owns a large portfolio of rental properties from which he has traditionally taken his income. W works as a project assistant for the council and also owns a couple of rental properties. Both parties agree that historically they had a high standard of living. The wife attributes the fact that they no longer do to deliberate efforts by the husband to manage and rearrange his finances since separation in a way that minimises her entitlement on divorce. The wife is pursuing this the main proceedings as a ‘conduct’ argument. The husband asserts that the high standard of living previously enjoyed was the result of the parties living beyond their means, mortgaging and remortgaging the various properties so that they are now left with limited equity and substantial mortgages at crippling interest rates. It will be for the trial judge to get to the bottom of these competing accounts.

Since separation the husband has continued to pay the mortgage, water bills and home insurance on the family home, at a total cost of £1,350 per month. He has also contributed to D’s school fees at a rate of £1,700 per month, although this will now be coming to an end as the parties have agreed D will need to go to a state school for sixth form. The only payment he has made direct to the wife has been child maintenance at a rate of £30.50 (despite a more recent CMS assessment having been made for £966 per month, a figure that will by now have been reviewed at the tribunal hearing).

Quite apart from the various mortgages on the family home and rental properties, the parties are carrying a considerable amount of personal debt much of which, I suspect, relates to the cost of litigating these proceedings. In their latest witness statements the wife reports £203,000 of personal debt (including outstanding legal fees) and the husband £184,000.

The husband says that he will continue to pay what he is paying but cannot afford any more. At the time of the original hearing in July 2024 that meant a total monthly contribution to/for the wife and D of £3,080. Given subsequent developments the school fees of £1,700 per month will fall away, but the CMS maintenance might increase.

The wife seeks £4,000 per month in addition the husband’s contribution to the housing costs (but, as noted above, inclusive of any CMS maintenance). She argues that the husband should continue to pay £1,700 to D’s school to reduce the arrears, which have grown to around £30,000, to avoid being sued by the school.

The wife also argues that any interim maintenance should be backdated to the date of the original hearing. The husband says there is no cash from which any backdating could be paid.

I shall explore the issues in the following order, which I find provides a useful framework for any maintenance application:

The wife prepared a specific interim budget with her first witness statement dated 11 April 2024 putting her total monthly outgoings needs at £7,808. The week before this hearing, on 25 June 2025, she filed an updated schedule that puts her total monthly outgoings at £7,283. Without recreating the entire schedule, her budget provides for the following:

The wife has detailed at length the standard of living she says the parties enjoyed while they were together. As I have said, the husband does not dispute this but says that expenditure at that level was and is unsustainable.

I am entitled, as explained in Rattan and elsewhere, to take a broad-brush approach to the wife’s budget. Given the standard of living previously enjoyed, the wife’s updated figures do not strike me as unreasonable or inappropriate, save for the following items on which I will comment specifically.

First, the husband takes issue with the wife’s car finance payments of £625 per month. These relate to a car purchased by the wife following separation, and the husband argues this was an unaffordable and irresponsible debt to take on in the circumstances. Whether or not that is true, the debt now exists and if it is not repaid the wife risks having the car taken away. In considering interim maintenance I am aiming to find a solution that allows the parties to keep their heads above water long enough to get to trial. With that in mind, I do include the car finance as an income need. Whether or not the debt should have been taken on, and the consequences if it should not, is a question for another judge on another day.

Second, the wife has included £420 per month towards the arrears on D’s school fees. She says this is required to stop the school taking them to court. I have no evidence for this, and in circumstances where these parties have close to £400,000 of non-mortgage debt, most of which is going unserviced, I do not see why I should elevate this debt above any other.

Third, the wife has included £242 per month towards £2,900 of orthodontic work for D, together with a quote for the work from November 2023. In the circumstances, where available income is tight and the parties’ debts so large, I am not persuaded that this is an ‘immediate’ cost that needs to be incurred between now and the final hearing.

I therefore assess the wife’s immediate income needs at £6,571, excluding the costs relating to the family home that are being met, and will continue to be met, by the husband.

The wife’s evidence about her income is contradictory.

In her witness statement supporting this application, dated 11 April 2024, she stated that she had “estimated net income from employment in the sum of £2,173.49 per month”. In her updating statement of 25 June 2025 she essentially repeated this figure, observing that her previous employment had been terminated and that, while she had been fortunate to secure a three month temporary assignment, if that were not extended “it is most unlikely that I will achieve an income anywhere near the rate that I am receiving for this temporary assignment and is more likely to be nearer my previous net income of around £26,000 per year”.

Ms Choudhury-Khawaja for the husband points out that the wife’s Form E, dated 17 June 2024, recorded that she had been working for the council for two years and that her last 2023/24 P60 showed gross income of £56,408 and net income of £42,115. That P60 was exhibited to the Form E, together with supporting payslips showing consistent receipt of over £1,000 gross per week. By contrast, no supporting documentation accompanied the witness statements to evidence the £2,713 per month / £26,000 pa figures. I am not able to reconcile these two competing accounts and so adopt the figures for which I have supporting payslips and a P60. It follows that I do not accept the wife’s assertion that, after the end of this temporary assignment (for which she is receiving £3,222 per month net), her future earnings will reduce to around £2,713 per month. The documents point to a track record of earning significantly more than that.

At the same time, I also cannot assume that W will simply be able to walk into a job on her earlier, higher, pay. For the critical period between now and trial I consider it most likely that her earned income will continue at the current rate of £3,222 per month, whether that comes from her existing temporary contract being extended or other short-term contracts of a similar nature.

In her latest statement the wife reports that her gross rental income from her two rented properties has increased to £27,552 pa. The running costs of those properties are included in my assessment of her income needs above. She will have to pay income tax on that income, but I cannot begin to understand how she reaches the conclusion that this will be at an effective rate of 45%. With a gross earned income of £38,500, much of her rental profit will be taxed at the basic rate of 20% and, like the husband, she will be entitled to partial relief in respect of her mortgage payments. Doing the best I can, I estimate that the tax on her rental income will be in the region of £8,000, leaving her with net rental income of around £1,640 per month (after tax but before mortgage and other outgoings).

Taking these together I calculate the wife’s combined net income at present to be £4,862 per month. She therefore has a shortfall of around £1,709 per month, which I round to £1,700.

There is no dispute that this is a case that, in principle, the wife should be entitled to look to the husband to make up that shortfall, if he can afford to meet it.

The parties reach wildly different conclusions about the husband’s income despite starting from the same basic figures. Both agree that the total rent due on the husband’s various properties totals £323,520 pa and that his state pension is £11,256 pa. From that same starting point, MsChoudhury-Khawaja for the husband seeks to persuade me that he has a net income of -£5,658 pa, while Mr Armstrong invites me to attribute the husband a net income of £107,687 pa.

Earlier in these proceedings the husband exhibited a “draft 2023/2024 management report” from his accountants setting out his income and expenses for the 2023/24 tax year. The wife was deeply sceptical of this document, with Mr Armstrong commenting in his position statement that the figures were “no doubt H self-reporting to the accountant. The accounts are not audited or verified.” It was somewhat surprising that neither party had thought to exhibit to their updating statements, or include in the hearing bundle, a copy of the husband’s tax return for the same period, which must have been filed earlier this year. Having now been provided with a copy of that return, it is clear that the figures in that profit and loss account were presented as final figures to HMRC. For the purpose of an interim maintenance application, therefore, I am content to accept them as an accurate report of his business income and outgoings during that period.

The second limb of the wife’s objection to the husband’s 2023/24 accounts are that, even if they are a true reflection of the husband’s income and outgoings during that year, they are skewed as a result of choices made by the husband designed to defeat or minimise her claim. In this regard she points to four items in particular:

As I have said, for the purpose of an interim maintenance hearing, where I have not heard evidence or had time to be taken through all the accounts, I accept the figures that have been submitted to HMRC as an accurate reflection of the husband’s rental income and expenditure for the period to which they relate.At the same time, the fact that those were the figures for the period April 2023 to March 2024 does not mean that those are the figures now. Just as I have had to identify the wife’s current income and reasonable expenditure, so I must do so for the husband.

The husband has provided evidence that the recovery rate has improved in the intervening period and that his rental income for the period June 2024 to May 2025 was £294,718, while his mortgage payments (ignoring product fees) for the same period were £173,219. I will rely on these more recent figures to predict his likely income between now and trial, rather than the filed accounts that relate to a period that ended well over a year ago.These annualise to a gross income after mortgage payments of £132,755 (including his pension).

The husband then invites me to deduct £55,000 for non-mortgage expenses (after rightly excluding the P Limited “management fees”). The equivalent amount in the 2023/24 accounts was £43,569 and the wife argues this should be reduced to £20,250 on the basis that some of the amounts claimed, particularly for gardening and maintenance, are excessive and far in excess of what used to be spent when the parties were together (although neither party has put in evidence any of the historic accounts to help me judge what is ‘normal’ for this business).

I have described how case law requires the wife’s budget to be looked at critically to exclude forensic exaggeration, with a focus on the parties’ immediate needs and allowing them to keep their heads above water until trial. In my judgment that applies equally to my assessment of the husband’s budget as to the wife’s. Maintenance and gardening are two items of non-critical expenditure that can and should be, if not completely curtailed, kept to a minimum pending trial. I will allow for £25,000 of non-mortgage expenses.

The wife then argues that I should budget £20,000 for the husband’s income tax, based on his 2022/23 tax bill, while the husband argues that I should account for £43,800 to match his 2023/24 tax bill. Given that W has argued (and I have largely accepted) that I should attribute to H an income that is, if anything, larger he reported in 2023/24, I cannot follow her argument that I should only allow for income tax at less than half of last year’s amount. I adopt the £43,800 figure proposed by the husband.This would leave him with a net income in the region of £64,000.

From that £64,000 pa, the husband has already committed to paying £1,350 per month towards running costs on the family home, at a total of £16,200 pa, leaving him with £47,800 pa. If he were also to pay to the wife the £1,700 per month shortfall I have identified above he would be left with £27,400 pa.

The wife, meanwhile, would have £56,784 pa for herself and D after having paid the outgoings on her own rental properties and without having to worry about payment of mortgage, water bills, home insurance, which are being met direct by the husband. This is double what is left to the husband. I do observe, however, that £15,000 pa of her budget is already committed to meeting some of her various credit commitments and so is not available for lifestyle spending. I also note that she is left bearing the cost of running a larger and more expensive property than the husband and that the wife will be meeting D’s needs from that budget as well as her own. Meanwhile, the husband may be able to share some of his domestic costs with his mother, with whom he is staying.

Taking all those factors into account (and noting that the husband has not provided me with a budget for his personal, i.e. non-business, expenditure) I am content on a broad-brush assessment that global maintenance at £1,700 per month would leave the parties with a broadly equivalent standard of living between now and the final hearing (or, more accurately, would not leave them with obviously unequal standards of living). This is an important consideration because, as HHJ Clarke observed during the appeal, there is often not enough income after separation for both spouses to maintain the standard of living they had while they were together and that “where there is a shortfall the parties would normally share the pain”.

I take reassurance that this amount is affordable for the husband from the fact that he has been paying that amount, until this month, towards D’s school fees.

I therefore consider it fair and reasonable to direct the husband to pay to the wife the monthly sum of £1,700 as global maintenance for herself and D, in addition to paying the mortgage, water and insurance bills on the family home as he has already been doing.

In respect of backdating, I accept the husband’s contention that there are not the capital reserves here to order him to pay additional sums representing backdated maintenance.

Interim maintenance applications are subject to the ‘clean sheet’ costs regime and the order of HHJ Clarke anticipates that I will deal with the costs of the original hearing as well as the rehearing. I will make a separate decision regarding the costs of this application once I have received further submissions from counsel.

I know both parties are desperate to bring these court proceedings to an end. I have checked with the court office regarding a final hearing date, but it still has not been listed. I very much hope that by bringing closure to the question of maintenance both parties can now, finally, focus their efforts on bringing matters to a close without depleting their remaining resources further.