It is sadly often the case that one party to divorce proceedings will consider that the other party has behaved badly in some way, and that that behaviour should be reflected in the division of finances, by reducing the award that the other party receives.

But just how relevant is conduct in financial remedy proceedings, and what is the approach taken by the court when faced with allegations of bad conduct?

Legal Framework

The conduct of the parties is specifically one of the matters to which the court must consider when deciding on orders to make on divorce.However, the court is only required to have regard to the conduct of the parties if it would be unfair or inequitable to disregard it.

The courts have generally interpreted this to be a relatively high threshold. It has been held, for example, that the conduct must be ‘gross and obvious’.This means that the it is rare for misconduct on marriage breakdown to be considered sufficiently serious to have a bearing upon the outcome of any financial remedies application.

This is particularly true of what may be called ‘personal’ misconduct, one of the three main types of conduct allegations that are raised in practice.

Personal Conduct

Personal conduct allegations relate to the general behaviour of one party, which adversely affects the other.It is not at all unusual for one party to want to raise the issue of the other party’s personal conduct. This is not unexpected: one party to a divorce will often feel that they have been ‘wronged’ in some way, and a sense of justice dictates that the other party should, quite literally, pay for their actions. Within marriage breakdowns, this may occur, for example if one party commits adultery.

But the reality is that personal conduct allegations will rarely meet the threshold referred to above and will not be sufficient to affect the decision of any court.To cross the threshold, the conduct has to be particularly serious.A rare example of personal misconduct that did affect the decision of the court occurred in the case Crowther v Crowther & Others (Financial Remedies) [2021] EWFC 88.

In that case Mr Justice Peel found that for the husband to have closed the family business, of which the wife was a joint owner, and transferred all assets, staff and operational activities to a new business owned by him, was “egregious conduct which was so extreme that it could not be ignored”. Mr Justice Peel therefore took that conduct into account as part of the overall distribution of the marital assets.

Financial Conduct

The second type of conduct allegation that may be raised is financial conduct , involving behaviour that has the effect of depleting assets available for division between the parties, such as obviously irresponsible financial transactions, heavy gambling, and spending large sums on unnecessary purchases.

Financial misconduct is considerably more likely to meet the threshold, and therefore affect the outcome of the case.Where the court finds that there has been financial misconduct it may, for example, treat the ‘guilty’ party as if they still had the depleted assets, thereby reducing the amount of the award that they receive.

Litigation Conduct

Personal and financial conduct relate to behaviour outside of the financial remedy proceedings – during the course of the marriage, or its breakdown.

But a party can be ‘guilty’ of misconduct within the financial remedy proceedings, for example by raising irrelevant issues, by failing to comply with court orders, or by failing to provide full and frank disclosure of their means. This is the third type of conduct, known as ‘litigation conduct’.

The effect of litigation conduct, however, is not quite the same as personal or financial misconduct. Rather than being penalised with a lower award, the party guilty of litigation conduct will normally be penalised in costs.This was illustrated in the recent case VV v VV [2022] EWFC 46, also a decision of Mr Justice Peel.

In the case Mr Justice Peel found that the wife had failed on two ‘critical evidential issues’, which lay at the heart of the case. It is not necessary here to go into the details of those issues, save to say that they had caused what should have been a relatively straightforward case to be “hotly contested”, thereby vastly increasing the costs on both sides, and probably rendering the case impossible to settle.

In the circumstances, Mr Justice Peel found that the wife’s litigation conduct made it appropriate for her to make a contribution towards the husband’s costs, in the sum of £100,000.