Family Solicitor Alex Byrne summarises how the court treats ‘conduct’ in determining financial remedy cases and looks at a recent decision on this subject.

On 4th April 2023, the Law Commission announced a ‘review of the laws which determine how finances are divided among couples after divorce’. One of the potential areas of reform being what consideration the courts should give to the behaviour of separating parties when making financial remedy orders.

Practitioners will be well aware of the increasing prevalence of allegations of domestic abuse within financial remedy proceedings, given that research has suggested that approximately one-third of contested financial remedy cases within the court will have a domestic abuse background.

Section 25(2)(g) of the Matrimonial Causes Act 1973

Legislation requires the court to consider the conduct of each party, but only if the conduct is such that it would be ‘inequitable to disregard it’.

The court of appeal firmly closed the door on relying on conduct in almost all cases in Wachtel v Wachtel [1973] 1 All ER 829 and provided that, short of the conduct being 'both obvious and gross', the court should not decline to award any financial support or to reduce its order for financial provision merely because of what was formerly regarded as guilt or blame.  

In Miller / McFarlane [2006] UKHL 24, Lady Hale endorsed the Wachtel guidelines and stated that this approach is ‘not only just, but it is also the only practicable one. It is simply not possible for any outsider to pick over the events of a marriage and decide who was the more to blame for what went wrong, save in the most obvious and gross cases.’

What, then, are the most ‘obvious and gross cases’?

Since the introduction of section 25(2)(g) of the Matrimonial Causes Act 1973, the family court has heard many different types of cases. Examples include:

• Attempted murder resulting in 12 years’ imprisonment (H v H (financial relief: attempted murder as conduct) [2005] EWHC 2911 (Fam)). Coleridge J's view was that ''the court should not be punitive or confiscatory for its own sake. The proper way to have regard to conduct is as a potentially magnifying factor when considering the other subsections and criteria’’.

• A knife attack disabling the wife from working (Jones v Jones [1976] Fam 8);

• GBH & attempted rape (H v H (financial provision: conduct) [1994] 2 FLR 801);

• ‘Grave marital misconduct’ which included keeping an elderly husband in a smaller part of the house whilst cohabiting with her lover, coercing the husband into transferring significant sums of money, coupled with the refusal to accept a generous open proposal (Clark v Clark [1999] 2 FLR 498).

• In S v S (non-matrimonial property: conduct) [2007] 1 FLR 1496, the court heard about a number of significant incidents of domestic violence. In one of these incidents, the husband had chased the wife up to the bathroom, where she had fallen against the shower rail, cutting her head; moments earlier she had smashed his grandfather clock. The judge concluded that the sad history of the marriage may leave him with what might be called a 'gulp gasp? factor' arising out of what each of the parties did to each other, verbally and physically. He was not, however, left with the ‘gasp factor’.

The Domestic Abuse Act 2021

The Domestic Abuse Act 2021 (DDA 2021), for the first time, created the first statutory definition of domestic abuse which includes not only physical violence but also sexual, psychological, and economic abuse, as well as coercive and controlling behaviour. The role of the act in proceedings for financial orders is developing.

In Traharne v Limb [2022] EWFC 27, Sir Jonathon Cohen considered the issue of coercive control in the context of a post-nuptial agreement. Although the wife’s allegation of coercive control in this case were dismissed, the judgment was clear that it may be a factor in other cases.

In DP v EP [2023] EWFC 6, the court made findings against the wife of economic abuse (section 1(4), DAA 2021), stating that it was inequitable to disregard.

In (Tsvetkov v Khayrova [2023] EWFC 130. Peel J gave procedural guidance when pleading financial conduct:

Seales v Seales (Ancillary Relief: Murder and Coercive Control as Conduct) [2023] NI Master 629

This issue was most recently addressed in the High Court of Northern Ireland:

- The Husband had been convicted of the 2012 shotgun murder of Philip Strickland and had been sentenced to life imprisonment in April 2014. The Wife ran a ‘conduct case’.

- The total assets amounted to c.£1m, comprised of two properties (valued at £435k and £375k) and a further lump sum held by solicitors. The Husband submitted that the assets should be divided 50/50 and that the judge should not consider his conduct. The Wife said the assets should be split 75/25 in her favour, considering the Husband’s conviction for murder, the convictions of her two sons for their involvement, as well as the Husband’s domestic abuse, including controlling and coercive behaviour and physical abuse.

- Master Bell reiterated the high threshold for conduct but stated that it may be that expressions such as ‘the gasp factor’ should now be regarded as overstating the position. He considered that there is a clear obligation on the court to recognise cases of coercive control because it would be inequitable to disregard them. Further, that to exclude genuine cases of coercive control from amounting to conduct, would be to fail to do justice to women, as it is women who are disproportionately the victims of such conduct.

- Master Bell found that the Wife was subject to coercive control and that she had suffered psychological distress and enduring injury as a result, which also impacted her ability to obtain gainful employment.

- Master Bell considered this case to be a ‘paradigm example’ of a conduct case where the Husband’s conduct is so outrageous that it would be inequitable to disregard.

- Master Bell divided the assets in accordance with the W’s position. The Husband was also ordered to pay £50,000 in respect of the Wife’s costs for litigation misconduct.

The Way Forward

Clearly, the inclusion of economic abuse within the DAA 2021 and the decisions above have broadened the definition of conduct within financial remedy proceedings but the evidential threshold, in order to succeed with these arguments, remains high.

There is an absence of caselaw in this area, which needs revisiting, with the benefit of our modern and more nuanced understanding of Domestic Abuse and the law commissions review is to be welcomed.

If you would like to instruct Felicity to help you with a family law case, please contact family department secretary, Mavis, for an appointment on 0202 8885 7986.

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