Divorce and Finances: Conduct within financial proceedings

The main aim of the courts within financial proceedings is to determine a fair division of matrimonial assets between the parties and assess whether a clean break is achievable.

Although judges do consider all aspects of the case, to ensure an impartial outcome, they focus mainly on the future and not the past.

This is due to the fact that the judge’s decision is not swayed by who was to blame for the breakdown of the relationship, unless these actions are relevant to the assessment of the needs of both parties.

The courts must consider conduct of the parties where it is deemed relevant. This is provided for the Matrimonial Causes Act 1973 which states ‘if that conduct is such that it would, in the opinion of the court, be inequitable to disregard it’ (s.25(2)(g) MCA 1973).

This raises the question of what conduct is considered ‘inequitable to disregard’?

Since the Matrimonial Causes Act (which is 50 years old now) there has been further caselaw which has clarified the position of the courts on this matter.

It has been made clear by the authorities that the bar for a successful conduct case is extremely high. Case law indicates the examples of extreme conduct which may be considered include murder, incest, child abuse and or child abduction.

The test regarding conduct is whether there is a ‘gasp factor’.

A later case confirmed that the conduct must be ‘obvious and gross’.

Conduct can fall into 2 main categories.

• Personal misconduct- this includes violence and abusive behaviour such as stabbing a spouse.
• Financial misconduct- this is when one partner misspends assets or acts recklessly leading up to the proceedings such as reckless purchases.

To successfully argue financial misconduct, the act must be intentionally carried out to reduce the other spouse’s share. In one case, for instance, the husband’s serious cocaine and alcohol addiction was raised, the wife alleged that he was spending £6,000 per week on drugs and significant amounts on prostitutes. The judge ruled that while this behaviour was irresponsible, it was not deliberate, and therefore no “add back” of funds was granted.

Over recent years there has been an increase in the number of cases where allegations of abuse have been raised. In 2019/2020, 40% of new financial applications involved allegations of abuse demonstrating that this behaviour is unfortunately on the rise.

If you are considering beginning financial proceedings or have already began them and require assistance, please do not hesitate to contact our friendly and highly experienced team on 0161 624 6811 or email za@wrigleyclaydon.com, where we would be happy to help.