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According to the Matrimonial Causes Act, the reasons for a divorce are generally irrelevant to the Court and will not influence the outcome of the ancillary relief proceedings when the assets are divided. Conduct will only be taken into account if it is ‘gross and obvious’ and so serious that it would be unfair for the Court to disregard it as set out in section 25 (2) of the Matrimonial Causes Act 1973.

So ultimately, whether a spouse’s conduct has been serious enough will be a highly subjective decision.

There are generally two types of conduct to be considered, personal and financial misconduct. Personal conduct usually involves some sort of bad behaviour on the part of the ‘guilty’ party. It is perhaps the type of conduct most often complained of, but it is actually quite rare that this type of conduct has any bearing upon the settlement. Certainly adultery and most forms of unreasonable behaviour will normally have no bearing on the financial decision the Court makes. In order for the behaviour to be considered it has to be of a serious nature and it has to have a direct impact on how the Court should divide the parties’ assets, even then there is no guarantee that a Court will penalise that party by reducing their financial entitlement.

Whether or not domestic violence perpetrated by one party against another is taken into account depends on whether the violence has impacted on the parties’ financial position. In FS v JS 2006 a husband had badly beaten his wife but the question of whether he had deliberately done so was brought into doubt and this was the main reason why the conduct was disregarded. The judge in this case said that the wife’s account of the event was not consistent. In the case of H v H 2005 conduct was taken into account where a husband’s attack on his wife was so serious it impacted on her earning capacity.

More common are cases involving financial misconduct. For example where one party recklessly or purposely dissipates assets prior to financial remedy proceedings thereby reducing the amount available for division. As such, the Court will rectify the situation by adding back the money or assets and proceed as if the party still had them. An example would be the recent case of MAP v MFP 2015 where the husband had become addicted to cocaine during the latter years of the marriage. Despite spending significant sums on rehabilitation, he had often relapsed. The wife argued that the £1.5 million should be added back as a result of the husband’s reckless expenditure on cocaine, prostitutes and alcohol. The judge held that it would not be fair for these sums to be added back stating that the husband’s expenditure was ‘morally culpable’ and it was not ‘deliberate’. The judge found that the motivation was not to diminish the wife’s claim but rather due to the husband’s ‘own demons’.

In comparison, in the case of Vaugh  an v Vaughan 2007 the Court was prepared to add back sums spent recklessly by the husband on gambling. The differing outcomes of both cases show that each case is dependent on the specific facts and it should not be taken that a finding of gross and obvious conduct will automatically lead to a reduced claim for the perpetrator.

Whilst it may seem at odds with what people think is a morally fair outcome, it is important to keep in mind that the family Court when dealing with financial proceedings is not there to punish anyone regardless of the reason for the separation or their conduct during the marriage. The focus is on fairly dividing the matrimonial assets in accordance with the parties needs at the time of the divorce. The parties should focus on the actual issues to be resolved in order to prevent proceedings from dragging unnecessarily. It is not uncommon for parties to want to place blame and that therefore their share of the assets should somehow reflect that. However, this is not the role of the Court in financial proceedings. The benefit of a high threshold on conduct being considered is to ensure that the initial focus of the Court must be on making sure that the parties can move on with their life and have their needs met in the future, as opposed to being punished for what took place in the past. There is a responsibility on the legal profession to ensure that individuals are advised clearly about conduct so that they can try and focus on their life after divorce, and to temper the emotional reaction that inevitably follows the breakdown of a relationship.

Laura Dand

Thomas Brownrigg

Saleha Bibi

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