Conduct in divorce cases

The Matrimonial Causes 1973 (MCA 1973) governs many aspects of matrimonial proceedings, save for those now replaced by the Divorce, Dissolution and Separation Act 2020 (DDSA 2020). Section 25 of the MCA 1973, in particular, acts as the starting point in how the court determines how to divide the family assets between a divorcing couple. 

Section 25(2)(g), in particular, considers the conduct of the parties to the proceedings when making a financial order “if that conduct is such that it would in the opinion of the court be inequitable to disregard it”. 

The term “conduct” covers financial conduct as well as non-financial conduct. 

Financial conduct  

Financial conduct includes making false statements or willful non-disclosure during proceedings and purposely dissipating assets prior to proceedings to reduce the amount available for distributions.  

Dissipation of assets

Conduct, which dissipates the marital asset base, is considered by the courts when determining how the assets should be divided. This principle was made clear in Martin v Martin [1976].  

When one party uses financial behaviour as a point of contention, that party typically asks for the money that was lost to be "added back" to the asset schedule. In other words, the money that has been spent is returned to the marital pot and distributed appropriately. This concept was considered by the Court of Appeal in Vaughan v Vaughan [2007], where the husband had dissipated wealth by gambling. The Court of Appeal ultimately concluded that £100,000 should be added back.  

However, for the “add back jurisprudence” to take place, one party must have wantonly and recklessly dissipated the assets which would have otherwise formed part of the divisible matrimonial property. An example of the high threshold nature of this concept is the case of MAP v MFP [2015] where the wife alleged that the husband was spending over £5,000 per week on drugs and sex work. Although the court agreed that the husband’s spending habits were morally culpable, it was not found that it was deliberate or wanton dissipation within the meaning formulated by the authorities as he had not overspent to reduce the wife’s claim. 

Non-financial conduct  

This relates to the bad behaviour of one party during the marriage. It is more commonly invoked, but very rarely has bearing on financial settlement. 

Whilst many believe that adultery and unreasonable should result in a more favourable settlement, these factors tend not to have any real bearing on the financial aspect of a divorce. For the court to consider personal misconduct to be relevant, it has to be exceptionally serious. Even in cases of extreme personal misconduct, there is no guarantee that the Court will penalise the ‘guilty’ party financially. 

An example where non-financial conduct was considered to meet this threshold was in the case of K v L [2010] whereby the husband’s sexual abuse of two of his stepchildren resulted in the judge ruling in the wife’s favour. However, for example, in JS v RS [2015] the husband’s misappropriated the monies given to him for home improvements was not considered so serious as to justify departure from inequality. 

FRB v DCA [2020] (No 2) EWHC 754 

In this case, the husband and wife were from extremely wealthy families, with a spending of over £5 million per year on an extravagant lifestyle over their 14-year marriage. Shortly after separating, it was revealed the husband was not their son’s natural father, and that the wife allowed the husband to bring up a child believing that he was the biological father. 

The husband cited the wife’s deceit in keeping the son’s paternity secret – which induced the husband to commit both financially and emotionally to another man’s child – as misconduct and claimed this should impact her financial award. While there was a financial element to the husband’s claim, the notable point is the emotional and moral element to the claim as the husband’s case relief on emotional stress and deception that was caused to him by the wife. However, the wife claimed she had no reason to suspect that her husband was not the father. 

Cohen J ultimately concluded that the wife was guilty of conduct so egregious that it would be inequitable to disregard it. However, it was also revealed that the husband was guilty of litigation conduct through the substantial non-disclosure and had access to or ownership of assets which he had not disclosed.  

Consequently, the court held further reducing the wife’s award was considered to risk ‘inflicting a double jeopardy’ and lead to an unfair outcome. As a result, the assets were split 50/50 meaning the conduct had no financial impact on either party and Cohen J effectively offset the wife’s conduct against the husbands. 

Litigation Misconduct 

The court will also consider conduct during the court proceedings themselves. This is known as litigation misconduct and can include issues such as: 

• Failing to meet court deadlines 

• Acting in a way that is deliberately destructive to the proceedings 

• Making ill-founded applications 

• Attempting to mislead the court 

• Failing to comply with disclosure requirements 

• Unreasonably pursuing arguments that are bound to fail 

The consequences of litigation misconduct could be that the judge orders the party hat failed to comply to pay some of the other party’s costs – known as a costs order. However, the recent case of VS v OP [2024] EWGC 190 demonstrates a rare example of a judge using their discretion to reflect the litigation misconduct in the division of assets rather than a costs order. 

In this case, the parties had a relatively short marriage of 5 years. Although the usual court process involves three hearings (First Appointment (FDA), FDR and Final Hearing), this case had six due to litigation misconduct by the wife and three adjourned hearings. This was because the wife failed to provide the required financial disclosure and failed to attend hearings on two occasions. By the final hearing, the wife had breached four penal notices having failed to provide full and frank disclosure and failed to attend court.  

The judge concluded that the wife was in ‘serious litigation misconduct’ and departed from equality with a division of assets of 66.5% and 33.5% in the husband’s favour. The departure from equality was held to be fair because the wife’s litigation misconduct had significantly increased the duration and expense of the proceedings. 

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