More than a year on from the introduction of no-fault divorce in England and Wales, many divorcing parties are now aware that there is no longer a need to assign blame to one person for the irretrievable breakdown of a marriage. However, misconceptions persist about how bad behaviour by one party (or both!) factor into the overall determination of the family finances upon divorce. Frequently (and perhaps understandably) there is hope or expectation that bad behaviour will be taken into account by the court when dealing with financial claims upon divorce, even if only in the form of a stern telling-off from a judge.
In reality, it is very rare for conduct to be determinative in financial remedies. Conduct is only one of several factors listed at Section 25 of the Matrimonial Causes Act 1973 (MCA 1973) which judges are required to consider. The statue itself also states that conduct is only to be taken into account if it is such that it would "be inequitable to disregard it". There is a therefore a built-in threshold specifying that the conduct must be sufficiently bad enough that it would be unfair not to take it into account.
The case law over the subsequent 50 years has revealed what is in fact a very high bar to cross before conduct may be relevant. There have been several judicial suggestions over the years as to what the tipping point is: whether conduct is "gross and obvious", whether it should have a "gasp factor", or whether it is necessary that the conduct should have financial consequences before it can be taken into account. However, divorcing parties are often surprised to learn that even personal misconduct which crosses criminal thresholds might not be capable of influencing the outcome of financial proceedings.
In a recent judgment by HHJ Reardon (DP v EP (Conduct: Economic Abuse; Needs) [2023] EWFC 6) it was held that economic abuse, as defined in the newly enacted Domestic Abuse Act 2021, can amount to conduct for the purpose of determining financial claims upon divorce. This development is in keeping with the broader shift in society at large and in the family courts to recognise coercive controlling abusive behaviour, but even so, the judge in that case was quick to emphasise that not all cases involving economic abuse will have the "gasp factor" required by the MCA 1973. Therefore, while the breadth of behaviours potentially constituting conduct may have widened, the threshold for successfully pleading conduct remains very high.
This may come as a surprise to parties facing the divorce process, but there are good reasons for the bar to pleading conduct being as high as it is. The family court's task in financial remedies is essentially forward-facing and is aimed at helping parties to resolve their financial claims against each other as amicably and quickly as possible. In those circumstances, dwelling too much on past bad behaviours is unlikely to be helpful and is more likely to result in increased acrimony between the parties (and higher costs). Conduct which is more likely to be relevant is that which arises in the course of the proceedings, such as a failure to comply with the ongoing duty of full and frank financial disclosure to which all parties are subject, or litigation misconduct (such as causing unnecessary delay or making frivolous or baseless applications).
However, this remains a developing area of law.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
