Many of you out there may think that conduct should be a real and live issue during divorce proceedings.

Sadly so, many have been cheated on, suffered unacceptable or even violent behaviour from their spouse, or have been deserted.

Many want the party at fault to feel pain too, usually through financial penalties, or sadly through restricting contact with their children as a form of revenge or punishment. After all, it is an emotional time when a marriage breaks down, and there are emotional responses.

I have in previous articles put forward the court’s view regarding the children, and how they must come first whatever the situation: the court will in the absence of safeguarding concerns inevitably promote as much contact between the children and both parents. In this article I intend to concentrate on the financial aspects.

Where do we start? Let’s look at what statute says. At s. 25(2)(g) of the Matrimonial Proceedings Act 1973 the court “shall” that is musts have regard to “Conduct…..which it would in the opinion of the court be inequitable to disregard”.

Lord Denning in the famous case of Watchel v Watchel in 1973, his interpretation was that conduct had to be “gross and obvious”; “so much so that to order one party to support another whose conduct falls within this category is repugnant to anyone’s sense of justice”.

Many would think that having an affair which broke up the marriage should be regarded as “conduct”. Not so.

The current thinking is mostly that there should be financial implications for the conduct to be worthy of consideration by the court, rather than for emotional upset, for example where one spouse has needlessly given up work or frittered away assets; an injury caused by the other party which reduces the victim’s earning capacity; or a party has mislead the court as to the extent of their income or assets or has not disclosed the full extent of their financial position.

It is not easy to persuade the court that conduct should be an issue which results in a more favourable order to the aggrieved spouse, but here are a few examples to provide the flavour of those sort of cases where such applications have been successful:

  • S v S (1982): Here the husband had lost his job after pleading guilty to a number of sexual assaults on his daughters when the conduct as considered “repugnant to justice not to that conduct into account”. The matrimonial home was transferred to the wife rather than for her to rely on maintenance payments from the husband’s lack of income.
  • In H v H (1994): the result was the same after the husband had lost his job and was committed to prison after a vicious attack on his wife.
  • Thiry v Thiry (2014): In this case the husband was ordered to repay 17m Euros and a further 2.6m Euros interest lost on a failed business venture into the wife’s account which he had taken without her consent.
  • Norris v Norris (2003) The wife had overspent over a quarter of a million pounds in a “wanton” manner, and was ordered to repay this to the husband.
  • In the case of MAP v MFP (2015) the husband was ordered to restore money to the “matrimonial pot” which the wife had lost as a result of him dismissing her form the family company. However, the fact that he had spent thousands on drugs and prostitutes was not taken into account since the court considered he had a “flawed character” and as a result could not help his conduct.

All in all, it should be noted however that there is no direction in the Act for only financial conduct to have an impact, rather than any other sort of behaviour. There has only been rare cases however when there has been such an outcome to date. Perhaps it is up to the legal profession to push this point more often where the conduct of one of the party’s has been so repugnant in terms of making the other’s life intolerable, or that of the children, that there should be a repercussions for that party, in a financial sense as well as facing that outcome if there has been some sort of financial irresponsibility or behaviour that results in the family being less well off.

For example, if one party has caused psychological problems to manifest in their spouse which debilitates their standard of living or lifestyle and/or resulting in them not being able to work, or return to their original employment because of the detriment to their health?

Into the mix comes those who have behaved badly enough for their conduct to be taken into account. What then if they have needs too which have to be addressed? It is doubtful the court would in those circumstances ignore their needs, but it is doubtful that they would receive an award as great as they would have done if their behaviour had not qualified as “conduct” compelling the court to take it into consideration when dividing the matrimonial assets.

I would suggest therefore that no one should rule out conduct as an issue if their spouse’s conduct has seriously impacted on their lives during the marriage; discuss it with your solicitor and see if the issue is one that might be worthwhile raising. Nothing ventured, nothing gained as they say.

Contact our Family Law Team on 01636 594460 for free short appointment clinic on Fridays where would be pleased to advise.   We have offices in Boston, Lincoln, Spalding, Sleaford and Grantham where any member of our Family Law Team can also help advise.

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