There are few reported circumstances in respect of upkeep pending swimsuit. Fewer nonetheless emanate from the Court docket of Attraction. The Court docket of Attraction’s latest determination in Rattan v Kuwad [2021] EWCA Civ 1 supplies a helpful overview and sensible steering in respect of upkeep pending swimsuit purposes. 


Lord Justice Moylan

The only criterion for assessing an order of upkeep pending swimsuit underneath part 22 of the Matrimonial Causes Act 1973 is that such provision have to be ‘because the courtroom thinks cheap’. Moylan LJ (pictured) in Rattan acknowledged that the broad nature of the statutory energy means the way through which it must be exercised is contained in steering given by the courts. In so doing, he referenced lots of the main reported upkeep pending swimsuit circumstances. He described part 22 as a ‘very broad statutory energy’. Moylan LJ additionally famous that Nicholas Mostyn QC (then sitting as a deputy Excessive Court docket choose) equated ‘cheap’ with ‘equity’ in TL v ML [2006] 1FLR 1263.

Moylan LJ additionally famous that in numerous circumstances, together with F v F (Upkeep Pending Swimsuit) [1983] four FLR 382, the courtroom’s method has been described as ‘tough and prepared’ when it got here to figuring out upkeep pending swimsuit purposes. In apply, which means district judges coping with upkeep pending swimsuit purposes need to take a broad view on account of administrative expediency. Upkeep pending swimsuit orders are a creature totally different in kind and substance from substantive orders made on the conclusion of proceedings. As well as, they’re typically made at an early stage within the proceedings the place monetary data is in brief provide.

Rapid wants

Moylan LJ famous that by reference to the Crimson Ebook, the aim of a upkeep pending swimsuit order is to fulfill ‘rapid’ wants. The principal situation within the current enchantment was: what wants qualify as being rapid? Moylan LJ caveated his view that the actual circumstances of every case will decide on which points the courtroom might want to focus and the decree of scrutiny which is required. Most importantly, he acknowledged that the phrase ‘rapid’ does not more than mirror the truth that the courtroom is worried with an order for upkeep pending the ultimate decision of the monetary dispute. Moreover, the truth that some objects of expenditure aren’t incurred each month doesn’t imply that they need to be excluded for the needs of figuring out what upkeep is affordable.

Marital way of life

As was famous in TL v ML, the marital way of life must be a related issue. Moylan LJ, nevertheless, famous that generally the household’s monetary assets are unlikely to be adequate to allow the marital way of life to be maintained for each spouses. He did, nevertheless, caveat that with the generalisation that the events’ separation doesn’t, of itself, present a cause for the usual of dwelling to be lowered in the identical method that it doesn’t present a cause for the usual to be elevated.


In F v F (ancillary reduction: substantial property) [1995] 2 FLR 45 Thorpe J highlighted the necessity to critically look at the applicant’s price range. In the same vein, Mostyn in TL v ML additionally acknowledged that there must be a particular upkeep pending swimsuit price range for such purposes.  

F v F was a big-money case. The current matter earlier than the Court docket of Attraction was not. Moylan LJ acknowledged that ‘the courtroom just isn’t required to undertake any higher “important” evaluation of a schedule of earnings wants than is required of every other side of the case. The courtroom is required to undertake such evaluation as is adequate to be happy that the last word award is “cheap”. In some circumstances this may require an in depth examination of a price range, in others, equivalent to the current case, it is going to be instantly obvious whether or not the listed objects characterize a good information to the applicant’s earnings wants’.

Moylan LJ additionally acknowledged that ‘it’s not obligatory for an applicant for upkeep pending swimsuit to offer a listing of earnings wants distinct from that set out within the Kind E’. On this level, Moylan LJ particularly disagreed with Mostyn’s guidelines in TL v ML. In TL v ML, he acknowledged that in each upkeep pending swimsuit software there must be a particular price range ready by the applicant. Moylan LJ was of the view that the ideas in TL v ML must be utilized within the explicit circumstances of every case. Within the current case, a particular price range was not required.

College charges

As a part of her upkeep pending swimsuit price range, the spouse had included provision for college charges. Moylan LJ acknowledged that college charges could be included inside earnings wants and may kind a part of an order for upkeep pending swimsuit. There is no such thing as a cause why they need to be sought in a separate software.

Andrew Newbury

Huge and small cash circumstances

Lastly, Moylan LJ drew a distinction between such circumstances, referring to his earlier determination in BD v FD (upkeep pending swimsuit) [2016] 1 FLR 390. In mild of the numerous property in that case, Moylan LJ had questioned the necessity for the spouse to deliver the upkeep pending swimsuit software. The husband was paying upkeep pending swimsuit to the spouse of over £200,000 a 12 months, but the spouse was in search of a further sum of £70,000 to £190,000.  It was in that context that Moylan LJ had questioned whether or not it was acceptable for the courtroom’s jurisdiction to be invoked.

 Andrew Newbury is a associate at Corridor Brown Household Legislation