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YN v NM [2020] EWFC 13 – Interim maintenance refused pending resolution of set-aside application

Posted on 14 September 2020

In this case, the wife applied to set aside a final consent order made in August 2018. The wife subsequently claimed that the husband had placed her under duress to sign the order. She also applied for recission of decree nisi. She made interlocutory applications for maintenance pending suit (MPS) and for an injunction, preventing the husband from selling the matrimonial home pending the resolution of her application, unless he agreed her terms for an escrow agreement. Both were refused.

The Court considered that, in order for it to entertain the wife's application for MPS, she would need to demonstrate that she was likely to succeed in setting aside the financial remedy order (the wife had argued that the test should be "real prospect of success"). The Court was of the view that it had to be cautious in granting interim relief where the ultimate entitlement to such relief remained in dispute, but that this was particularly so where there was already a concluded agreement, approved by the court. It noted that the wife was not in "a predicament of real need". Her application for injunctive relief also failed, as she had failed to produce any objective evidence that there was a real risk of dissipation.

David Lister says: "Applicants already face significant burdens to demonstrate to the Court the need for interim provision and injunctive relief. Such applications are not "rubber stamping" exercises by the Court. All Applicants need to prove their need and the entitlement to the relief based on the law and, of course, the factual matrix in support of their case(s). Here the interim remedies sought (financial provision and injunction) were in tandem with a substantive application to set aside an Order, which application of itself requires an Applicant to jump an even higher "hurdle" in support of his/her case. Fairness to the respondent is also relevant. Applicants need to carefully consider whether the facts of their case demonstrate strong grounds for an interim order before making an application."

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