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Vardags Family Law Essay competition 2023/24 | Claire Johnson

Claire Johnson - University of Law

Should conduct be removed as a factor which the court is entitled to consider when making a decision under the Matrimonial Causes Act 1973, section (25)(g)?

Although family law solicitors spend substantial time advising their client on the law, they also spend a significant amount listening to their clients experiences. Clients themselves are contrary; they can be amicable and constructive but also fixated on the unjust behaviour of their ex-partner. This essay will consider whether conduct, as a factor in s.25(g) of the Matrimonial Causes Act, should be removed as something to which the court may have regard. I will first consider the change to no-fault divorce before comparing the approach to conduct within Children Act proceedings and within financial remedy proceedings. I will argue that, for both, litigation misconduct is currently considered, but that the courts entitlement to consider other types of conduct should be removed. I will conclude that, whilst this is unlikely in be enacted in Children Act proceedings, it should be done within financial remedy proceedings.

Divorce Proceedings

The Divorce, Dissolution and Separation Act (2020) came into effect on 6 April 2022. Previously, Section 6 of the D8 form required the applicant to choose one facts that would prove that the marriage had irretrievably broken down. The ONS confirmed that unreasonable behaviour was the most cited reason in 2021. Haskey, undertaking a study charting the reasons, explained that when considering what constituted a successful application, the strength of evidence, and level of detail, required for unreasonable behaviour has weaken over the decades, and is now nominal. Arguably, the earlier law contributed to why parties could become so entrenched in their determination to have conduct considered. If parties were validated that the behaviour they cited was unreasonable, they then wanted this moral censure to be reflected in accompanying proceedings.

The 2020 Act removed this need for a supporting factor as to why the marriage had broken down. Now, section 6 of the D8 simply requires ticking a box to agree to the statement, I confirm that my marriage or civil partnership has broken down irretrievably. This was a clear policy shift by Parliament taken after years of encouragement from the judiciary. This approach has continued in the governments push towards ADR to dissuade people from initiating court proceedings. A press release in March 2023 setting out the governments plan to make mediation compulsory prior to making an application to the court was met by criticism from those arguing that such an approach would fail to protect those vulnerable to domestic abuse and other safeguarding concerns. Recently, 26 January 2024, the government axed this plan. The shift to no fault divorce is necessary within the broader policy aim of allowing a couple to split with minimal acrimony. Given this shift, I argue that the court should be similarly dissuading pleading conduct within other proceedings to ensure unity across family law.

Children Act Proceedings

This essay will now turn to the role of conduct in Children Act proceedings where, generally, the court has discouraged pleading conduct on the basis that the risk of incurring costs should not dissuade an application. Conduct and costs are intrinsically linked in legal proceedings. In Civil Law the starting point is the Civil Procedure Rules 1998. Part 44.2(2)(a) states that the general rule is that the unsuccessful party will be ordered to pay the costs of the successful party. Family Law does not follow this general rule that costs follow the event. Practice Direction 28A of the FDR states in Part

28.1 that The court may at any time make such order as to costs as it thinks just. Three justifications for this approach were set out by Lady Justice Hale in R v R (Costs: Child Case) [1997].

The first was that an order for costs will diminish the available funds to meet the needs of the family. This is not persuasive. Once an application has been made, the money has been spent. Whether it follows that it is fair that both parties should bear the brunt of this decision is less certain. Secondly, the Children Act 1989 states in s.1 that the paramount consideration of the court is the welfare of the child; a party should not be deterred from presenting a rational case due to the threat of a costs order. Finally, a costs order is likely to inflame existing tensions between the co-parents which is not in the best interests of the child. This argument is not convincing because a parent who feels that the other parent unreasonably pursued proceedings against them is likely to feel doubly frustrated if the court subsequently declines to award costs in respect of their defending that application. In fact, a cost award could mitigate the feeling of resentment and allow the parties to move on.

The case law shows that it is generally litigation misconduct which persuades the court that a costs order is appropriate. In Timokhina v Timokin [2019], the mother was ordered to pay the fathers costs due to her litigation conduct. She had attempted to bribe a Russian police officer to begin criminal proceedings against the father. Schofield, Gibson and Bassam convincingly argue that costs orders do need to be used more stringently but also that there should be greater financial deterrent for wasting court resources on unnecessary applications. The article cites the case of Re B (A Child) (Unnecessary Private Law Applications) [2020] where HHJ Wildblood refers to the micro-management that is being asked of the courts. He references examples including the absurd At which junction of the M4 should a child be handed over for contact? Legal professionals undoubtably have a role to play in this failure. Parents should not become disempowered to parent their child. The article persuasively suggests that asking the court for judgment on a preliminary issue might assist to dissipate the backlog. It is clear that the court in Children Act proceedings is starting to penalise those who litigate with impunity, even if the trigger has been the justice system being unable to cope. Further, although Practise Direction 28A theoretically gives the court a wide discretion to make costs orders in regard to conduct other than litigation misconduct, the court is clearly abstaining from doing so. This position can be criticised as the law is not clear for those commencing proceedings without the benefit of legal expertise.

Financial remedy proceedings

Here, the statutory starting point is s.25(2) of the MCA 1973 which includes a list of the matters to which the court shall have regard when exercising its powers. Conduct is included as one of only eight and is listed thus, the conduct of each of the parties, if that conduct is such that it would in the opinion of the court be inequitable to disregard it. It is argued that this language currently does a disservice to what the judiciary intends by this, and what the parties may understand this provision to indicate. This is supported by Commins, who said that, however forcefully lawyers and judges seek to dissuade conduct litigation, the documents, forms, statutes and rules are littered with references to its utility.

In the Form E, s4.4 allows the parties to set out the allegations of conduct on which they seek to rely. A disclaimer that the court will only consider conduct in very exceptional cases is included. Groves identifies the importance of being capable of, identifying and pleading conduct issues early on in proceedings can greatly assist the court to focus on potential issues, which generally tend to escalate at a later stage in proceedings. Given the strict requirements, the onus is on the solicitor to be firmer with the client here. Maybe solicitors should describe the facts of cases which have been successful in pleading conduct because, as Groves says, it might make a client realise that, measured against this, ordinary or mild behaviour such as fighting and quarrelling is not behaviour that the courts will take into account, despite how persistent the clients can be at making these allegations.

The clear starting point is Wachtel v Wachtel [1973] where Denning MR concluded that, conduct in these cases usually proves to be a marginal issue which exerts little effect on the ultimate result unless it is both obvious and gross. To determine whether conduct should be removed as a factor, it will now be considered whether the type of conduct in question impacts on whether the court is likely more likely to make a costs order.

Cases involving violence

There are several sensational cases within this category. In Kyte v Kyte [1988] the husband was depressed and suicidal. The wife had previously prevented a suicide attempt before later assisting him in a second failed attempt. The court found that, it was in the back of her mind, if not in the forefront, that if he was successful she would inherit all his estate.

In Jones v Jones [1976], the husband had violently attacked the wife with a knife causing severe injury to her hand such that she was not able to continue her career as a nurse. The house was the sole asset and, on appeal, the court amended the order to an outright transfer of the property to the wife. It is interesting to speculate whether it was of relevance that the husband had been convicted to three years in prison. This, arguably, led the court to disregard a concern about meeting the needs of the husband given that he was incarcerated. Had this not been the outcome of the husbands trial, it is possible that the court may not have felt so sanguine about transferring all the assets to the wife.

These two cases both support the position that the court will consider physical misconduct only when it also has an impact on the finances. They persuasively suggests conduct is an integral factor of the MCA. If the conduct has relevance to the making of the financial award, then it should rightly be allowed to be pleaded.

This approach seems to be undermined by the case of K v L [2010] where the husband was convicted of sexually abusing two of his step granddaughters. Whilst this is undoubtably obvious and gross and, it is not clear how this financially devalued the wife. (It is possible to argue this requirement was present as, on appeal, Moylan J said that the husband had, a far greater responsibility for the continuation of the proceedings to their ultimate determination … than the wife. He contested a number of the allegations raised by the wife when, in my view, it was not reasonable for him to do so.) As part of the appeal in K v L, Wilson J discussed what he described as the husbands basic complaint, that, upon his release from prison, he is unlikely himself to be able to fund reasonable accommodation or even a modest standard of living. The judge maintained that, the case remained one in which it would not be fair to require the wife to make provision for the husbands economic needs. This suggests that conduct could be so deemed so extreme as to justify a departure from the needs principle. This is surprising, especially in a case where the wifes assets were valued at £4.3 million. This approach can be contrasted with H v H (Financial relief: attempted murder as conduct) [2005] where the husband was convicted of attempted murder after violently attacking his wife in the presence of the children. Coleridge J concluded that such behaviour, placed the wifes needs as a much higher priority than those of her husband, but notably did not extinguish his needs entirely. This must be the right approach as to allow conduct such weight as a factor that it can negate the husbands needs claim seems inconsistent with statute and earlier case law.

It should finally be noted that the court has not lost its moral judgement of certain behaviour. In the case of FRB v DCA (No 2) [2020] the court was invited to consider conduct of a wife who had induced her husband to the false belief that he was bringing up his biological child. Cohen J concluded that her actions were so egregious that it would be inequitable to disregard. This decision seems mistaken. Without excusing the wifes behaviour, given the previous case law setting such high requirements, this judgement appears to err on the side of moral censure, and thus exactly what Baroness Hale was seeking to dissuade judges from doing.

Financial misconduct

Most successful conduct cases in financial remedy proceedings are where financial misconduct is pleaded. In Martin v Martin [1976] Cairns LJ says that a spouse cannot be allowed to fritter away the assets by extravagant living or reckless speculation and then to claim as great a share of what was left as he would have been entitled to if he had behaved reasonably. In Vaughan v Vaughan [2007] Wilson LJ decided that, a notional reattribution has to be conducted very cautiously, by reference only to clear evidence of dissipation (in which there is a wanton element). In the infamous case of MAP v MFP (Financial remedies: Add-back) [2015] Moor J concluded that the husband did not have the requisite wantonness of intention to reduce the wifes claim and therefore there was no conduct that it was inequitable to disregard. Moor J says, Many very successful people are flawed. … I have decided that it would be wrong to allow the wife to take advantage of the husbands great abilities that enabled him to make such a success of the company while not taking the financial hit from his personality flaw … Overall, it was irresponsible. But I find that this was not deliberate or wanton dissipation. It is cautiously questioned whether this reasoning could be employed regardless of the conduct that amounted to a personality flaw.

This case can be unfavourably compared with Rapp v Sarre [2016], where the husband was similarly struggling with these three issues. However, in this case the judge concluded that the husbands conduct amounted to the reckless frittering away of family money. Edwards and Sandy, comparing the cases of MAP v MFP and Rapp v Sarre, concluded that there was not a differing outcome in the latter. They explain that, the Court of Appeal found that a departure from equality was justified on the basis of the wifes needs alone. If the approach taken in MAP v MFP continues, that leaves a narrow spectrum of financial misconduct which the court may consider.

Litigation misconduct

This essay will finally consider litigation misconduct. Analysis of the case law would appear to suggest that the court is more likely to take litigation misconduct into account which is cohesive with the approach in Children Act proceedings. An additional requirement was introduced into the FPR 2010 from May 2019 in para 4.4, PD28A, that, The court will take a broad view of conduct for the purposes of this rule and will generally conclude that to refuse openly to negotiate reasonably and responsibly will amount to conduct in respect of which the court will consider making an order for costs. This is clearly a lower bar to reach than for other types of misconduct. It has been recognised that, This assessment of conduct is broad; a party does not need to do something active, as the passive act of not negotiating is sufficient to satisfy the threshold

In MB v EB [2019], Cohen J found that the husbands failure to negotiate with the wifes offer resulted in the failure to resolve the case much earlier. Rachel Freemans analysis concludes that, Although the court will ignore bad behaviour during the marriage in all but the most extreme cases, the new costs rules means that it will not ignore bad behaviour during the court process. Whilst the courts more stringent approach in litigation misconduct is not to be criticised given the extensive demands on court time, it is argued that this needs to be more uniformly applied.

It is important to distinguish between the two ways in which financial penalisation can occur. Firstly, it can affect the substantive award made by the judge or it can instead be reflected in a separate costs order. Moylan LJ had valid reservations about this approach in Rothschild v De Souza [2020] where he said that a costs order simply reallocates the remaining assets between the parties. It does not necessarily remedy the effect of there being less wealth to be distributed between the parties. Despite this, in PD28A, para 4.4 of the FPR 2010 says that, Where an order for costs is made at an interim stage the court will not usually allow any resulting liability to be reckoned as a debt in the computation of the assets. The approach in the Practice Directions would clearly be preferred if the courts powers to discipline litigation misconduct were truly to be a deterrent on litigious individuals.


This essay has considered three strands of proceedings in family law and whether the court will take conduct into account in each. In divorce law, the court made the most irrefutable signal that conduct was irrelevant through the DDSA. Within Children Act proceedings, and financial remedy proceedings, it is clear that the court will consider litigation misconduct, and the court is becoming more willing to make cost orders. Otherwise, the court continues to strongly refute conduct as a factor except in the most extreme of cases. In Children Act proceedings, although there is clearly judicial frustration at some parties use of the courts, the underlying principles make it unlikely that substantive change will occur here. In financial remedy proceedings, the court encourages the avoidance of pleading conduct through the stringent requirements it has imposed yet I believe that s.25 should be amended to reflect this. Currently, the statue language is inconsistent with case law and amending s.25 to require the court to only consider the conduct where it has severely financially impacted the parties, or there was litigation misconduct, would provide much needed clarity to this area of law.

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