It is important to understand that the conduct put forward in divorce proceedings is separate from the contact that will be considered in financial remedy proceedings.

Family law is an emotional area, and it is understandable that a party to a marriage may wish to raise the other’s conduct, for example, where a marriage has broken down because one party has had an affair. The other party likely is to feel that this was through no fault of theirs, and as such, why should they be financially disadvantaged? Surely, the Court should consider the other party’s conduct and divide the finances accordingly. 

The approach taken by the court

Whilst conduct is a factor for the Court to take into consideration under the Matrimonial Causes Act 1973, it is well established from the leading case Miller v. Miller; McFarlane v McFarlane [2006] that conduct should only be raised in truly exceptional cases, where it is obviously gross and where it would be ‘inequitable to disregard it.’

Thereafter, in the case of S v S [2007], Nicholas Mostyn QC (as he then was) suggested when acting for the wife suggested a test of applying a ‘gasp factor’ and the Judge noted it needed to be more than a ‘gulp.’ This indicates the level of how serious the conduct needs to be.

In the most recent case of OG v AG [2020] involving conduct, Mostyn J went further to state that not only did conduct need to be ‘inequitable to disregard,’ but it must be financially measurable. He raised 4 distinct scenarios:

  1. Gross and obvious misconduct; for example, economic misconduct
  2. Add back arguments, where someone has wantonly and recklessly dissipated assets
  3. Litigation misconduct; for example, where a party intentionally fails to attend a court hearing or comply with directions from the Court, and
  4. Adverse inferences; for example, where a party has failed to provide full and frank disclosure as to the existence of an asset

What kind of conduct is considered gross and obvious that it would, in the opinion of the court, be inequitable to disregard it?

There have been a range of extreme conduct, to which the court have given consideration. Examples are as follows:

  • Armstrong v. Armstrong: Wife shot husband with his shotgun with intent to endanger life.
  • Jones (MA) v. Jones (W): Husband attacked wife with a razor and inflicted serious injuries with financial consequences for wife.
  • Martin v Martin: Husband frittered away assets which reduced the funds able to provide the needs of the parties after divorce.
  • K v. K: Husband has a serious drink problem and ‘disagreeable’ behaviour led to forced sale of the FMH with serious financial consequences to wife.
  • Kyte v Kyte: Wife encouraged husband’s suicide attempt, in order to gain assets
  • Jones v Jones: Husband physically attacked wife, which impacts her ability to work

From the examples provided, it can be seen that the court will give consideration to both physical and non-physical conduct.

How does the court deal with conduct?

A finding of conduct will not mean that there will be no financial provision made for the guilty party. Rather, it may mean a departure from the yardstick of equality, if there is sufficient assets to meet the needs of the parties, or it may mean that if there are insufficient assets to meet both parties needs then the needs of the party who has acted appropriately may be prioritised.

In conclusion, in matrimonial finances conduct or behaviour is rarely relevant when considering how the matrimonial assets ‘money’ should be distributed. If a party wishes to argue conduct, the conduct must be gross and obvious that it would in the opinion of the court be inequitable to disregard it.

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