When dealing with the financial aspects of a divorce, some would like the Judge to know how badly the other party has behaved and would hope for some compensation in return. In fact, the financial disclosure form (Form E), asks whether the party wishes to raise any conduct issues with the proviso that bad behaviour or conduct will only be taken into account ‘in very exceptional circumstances’.
What amounts to ‘very exceptional circumstances’? This causes considerable confusion to people who would wish to raise issues such as the adulterous act of their spouse, or the domestic abuse they suffered during the marriage. Many are surprised to find that the relevance of behaviour or conduct arguments in financial remedy proceedings is rare.
In the case of OG v AG [2020] EWFC 52, the High Court Judge, Mr Justice Mostyn said:
“Times have changed. The financial remedy court is no longer a court of morals. Conduct should be taken into account not only where it is inequitable to disregard but only where its impact is financially measurable. It is unprincipled for the court to stick a finger in the air and arbitrarily to fine a party for what it regards as immoral conduct.”
When is behaviour or conduct relevant in financial remedy proceedings?
The Court aims to ensure both parties’ financial needs are fairly met. Fairness does not require consideration of the parties’ conduct, which will only be raised in ‘very exceptional circumstances’ where it is ‘obvious and gross’ and it would be ‘inequitable to disregard’ the conduct.
For example, the Court may not consider domestic abuse, which took place during a marriage, as obvious and gross, unless that abuse constituted one party being attacked to an extent they were virtually unemployable (Jones v Jones) or one party’s connivance in the other spouses’ suicide attempts to gain assets (Kyte v Kyte) which was found to be inequitable to disregard.
In some rare cases, if the Court finds that one party has recklessly dissipated assets, and there are sufficient assets to meet needs, the Court can ‘add back’ those assets/expenditures.
Costs
Raising behaviour or conduct issues during financial remedy proceedings can be costly, as the parties may be required to file narrative statements and give evidence at the Court. There are potential cost implications of pursuing inappropriate conduct arguments too.
How can we help?
Emma Davies is a Partner in our expert Family Law team.
Our team can advise separating parties on the correct approach, depending on their individual circumstances, and aims to resolve matters in a conciliatory manner by ensuring that our client’s needs are adequately met.
For further information on how we can help, please contact Emma or another member of the team in Derby, Leicester or Nottingham on 0800 024 1976 or via our online enquiry form.
Contact Us