The story of a woman calling for changes to the family court system has recently been widely covered in the press. She has reportedly negotiated over £50,000 in a divorce settlement despite her husband having been arrested on suspicion of her rape.

https://www.dailymail.co.uk/news/article-11427333/Woman-calls-change-handing-ex-husband-50-000-divorce-settlement-despite-rape-accusation.html

What conduct will a court consider?

People often believe that their ex-spouse’s behaviour will affect the financial settlement they receive as a result of their divorce. The truth is, that the law in England and Wales is not punitive in this way. This means that it does not punish spouses financially if they have had an affair, been emotionally neglectful or treated their spouse badly.

There is however an argument under Section 25 of the Matrimonial Causes Act 1975 which states that “conduct” is one of the factors that the Court can take into account when deciding a settlement. The contact has to be very serious and is only considered relevant where it would be unfair for the Court to ignore it.

There are usually two types of conduct that the Court would take into account; 1) personal, and, 2) financial.

1. Personal Conduct or bad behaviour as Lawyers refer to it is often argued by clients. In reality, it rarely impacts the overall settlement because it has to be extreme misconduct for the Courts to truly recognise the impact. Even in cases of domestic violence or in a recently reported case where there had been rape, unless the parties’ financial position had been negatively impacted the Courts are reluctant to take it into account. In the case of H -v- H, the Court acknowledged violent conduct within the financial proceedings because the husband’s attack on his wife was so awful that it had an adverse effect on her earning potential. Cases like this are very rare.
2. Financial conduct is the most common type of conduct that the Courts take into account. This is often where one party may have a drug or gambling addiction or recklessly or purposely dissipates assets prior to financial remedy proceedings. This happened in the case of Norris -v- Norris where the badly behaved party had spent money on expensive holidays and cars thereby reducing the matrimonial pot and trying to affect the overall settlement. The Court considered this should be reflected in the end settlement.

Where there has been financial misconduct the remedy often applied by the Courts is to “add back” the money which has been spent. In the case of MAP -v- MFP the Courts made clear that the motivation behind the party dissipating assets was relevant. In this case, the husband had a drug addiction which he had tried to deal with by spending large amounts of money on rehab and would then subsequently relapse and spend significant sums on drugs. The Courts did not ‘add back’ or ‘reimburse’ the wife for these sums on the basis that his behaviour was not deliberate.

The Courts will also take into account conduct during the Court proceedings themselves. This is known as litigation misconduct and can include issues such as failing to meet Court deadlines or requirements or to act in a way that is deliberately destructive to the proceedings. Recently, the new guidelines in relation to financial remedy proceedings have made clear that parties’ must try to actively and reasonably negotiate with each other to reach settlement and failure to do so could result in them having to pay towards the other parties’ costs.

It is important that clients understand that conduct can only be raised in circumstances where the misconduct is very serious. The repercussions of raising a conduct argument without the appropriate level of seriousness or evidence to support the allegations can result in the person making the claim being penalised and in extreme circumstances ordered to pay the other side’s costs.

If you are dealing with a divorce settlement and are considering raising your spouse’s conduct as an argument within those proceedings it is important that you seek the appropriate legal advice as soon as possible and prior to doing so.

If you would like advice regarding raising a conduct argument, book a fixed fee consultation with one of our family lawyers today. Call 0330 0945 500, email family@nevesllp.co.uk or complete our Contact Form and we'll get back to you.