9. Can the court backdate an order for maintenance pending suit?
Yes. In appropriate cases, the court may backdate an order for maintenance pending suit (“MPS”).
An MPS order may be backdated to the date when the divorce petition was presented, or when the joint application for divorce, nullity, or judicial separation was made, or any other date thereafter. This allows the court to cover the period between the start of the proceedings and the final decision.
If a respondent has already provided some support voluntarily or through an interim arrangement before the formal MPS hearing, the court typically gives credit for interim maintenance already paid when backdating the order.
If the application is to vary an existing order for maintenance pending suit, the court has a wider discretion. In suitable cases, it may backdate the variation to a date earlier than the application for variation (but not earlier than the date of the petition), if this is required in the interests of justice. For example, the court may do so where the original amount has become unfair because of inflation, a change in income, or other significant changes in circumstances.
The court may also backdate litigation funding where it forms part of interim financial support. However, backdated litigation funding will usually be limited to outstanding legal costs already incurred by the time the application is decided.
When deciding whether to backdate an order, the court will consider matters such as whether the applicant acted promptly, whether there is a good reason for any delay, what payments have already been made, and whether backdating would be fair to both parties.
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