When is conduct relevant?
“I have been asked to prepare a Form E and there is a section about the conduct of the other party. How much do I include here? What should I include and why is it relevant?”
This is something that we are asked quite often and it is important to explain why this section is relevant and when it will be helpful to include information here.
Section 4.4
The section states that ‘bad behaviour or conduct by the other party will only be taken into account in very exceptional circumstances…. If you feel it should be taken into account in your case, identify the nature of the behaviour or conduct below’. So when should it be taken into account, what circumstances are classed as ‘exceptional’ and how much detail would you include?
In the case of Miller and McFarlane [2006] the judge determined that conduct had to be ‘Gross and Obvious’ to be taken into account. In most situations, that is not going to be applicable and conduct is not going to be taken into account in determining how the assets should be divided. Generally, for there to be an adjustment of assets or add back arguments, expenditure should be ‘wanton’ or ‘reckless’ or there should be a deliberate dissipation of assets.
Why is conduct relevant at all?
Conduct can be relevant as it is one of the factors listed in s.25 Matrimonial Causes Act 1973 (MCA 1973), which helps the court to consider how to divide the financial assets. It appears at s.25(2)(g) MCA 1973, requiring the court to take into account the conduct of each of the parties, if that conduct is such that it would in the opinion of the court be inequitable to disregard it (emphasis added). The reason that it is not relevant in most cases is that it is often not so serious as to warrant any departure from what the court would have otherwise done. The threshold is high, as is set out in the following examples. Furthermore, in a lot of cases the outcome is determine with reference to the parties’ needs. The needs of the parties and any relevant children are often the key factor unless there is significant wealth.
Examples
Here are some examples of cases where ‘conduct’ was argued:
MAP v MAP [2015]: In this particular case the Husband was addicted to cocaine. Despite spending significant sums on rehabilitation, he relapsed.
The Wife argued that sums should be added back due to the Husband’s reckless expenditure on cocaine, prostitutes and alcohol, but the judge said that this was not fair because the expenditure was not his fault, it was not deliberate. The judge believed that the Husband’s intention was not to dissipate assets but was due to his own ‘demons’. The husband had been a successful business man during the marriage and so the judge had said that the wife cannot cherry pick and should take her husband as she finds him. It was ‘irresponsible’ but not deliberate dissipation.
By contrast, in the case of H v H [2006], where a Husband attempted to murder his wife by stabbing her, so that she was unable to work was described as conduct at the higher end of the scale because of the financial consequences on her earning capacity. The husband was sentenced to 12 years imprisonment and whilst in prison was obstructive with regard to selling the family home. Therefore, this meant that the Wife’s needs were greater and she was entitled to more than 50% as a result.
In an interesting case FRB v DCA [2020] the court considered whether it was relevant conduct on the part of the wife to allow the husband to bring up a child in the belief that he was the natural father when he was not. Interestingly the judge decided that this did amount to relevant conduct, but quantifying this was much more difficult and to try to put a financial value on that emotional harm was like comparing apples and pears.
More recently, in OG v AG [2020] there were various arguments regarding conduct, but the court made some interesting decisions in relation to ‘litigation conduct’. The Husband had sought to hide assets and this had resulted in delay and increased costs for the wife. The Judge stated that once the landscape is clear (i.e. once you are able to understand what assets are available and what they are worth), if a party does not negotiate reasonably then they will suffer a penalty in costs. This makes offers and the refusal to negotiate more of a pertinent issue going forward.
What should I include?
If you have decided, in the circumstances of your case, that the conduct is relevant then you would need to include a summary in this part of the Form E setting out what the conduct was and why it is relevant.
The judge at the First Directions Appointment (that is the first court hearing) would usually try to identify whether conduct was going to be a central issue in the case and if it is, then narrative statements are usually ordered at a later date to set out the conduct in more detail.
When not to include conduct
It is hoped that with the introduction of the non-fault divorce law in April 2022 that divorces could proceed on a more amicable basis from the outset. This is because there is no longer any need to cite ground for the divorce and so where possible, it is hoped that blame can be avoided and all matters, including finances, can be dealt with on a more amicable footing.
If you need further advice do not hesitate to get in touch with us: 0161 980 6099
