In this blog post trainee solicitor Kay Bowring discusses how behaviour is taken into account during financial remedy proceedings.
It is often a shock to discover that the conduct (behaviour) of one party in a divorce is rarely taken into account by the Court when considering the division of assets.
Although “conduct” is one of the criteria that the court should have “particular regard to”, as set out in s25 of the Matrimonial Causes Act 1973, it is only such conduct that, “in the opinion of the court, would be inequitable to disregard”. We are often asked by survivors of domestic abuse whether they should explain their experiences to a Judge. Frequently, and sadly, the answer we give is ‘no’.
For many years, family lawyers have been attempting to encourage the Court to consider ‘”conduct” when dividing assets during the finance proceedings arising from a divorce. The latest case from July 2024, N v J [2024] EWFC 184 (‘N v J’) saw assets valued at more than £32m and the parties incurring legal fees over £1m. One party made a conduct allegation against the other, stating that they had suffered emotional and psychological abuse which caused a deterioration of their mental health.
Despite mental health being at the forefront of recent campaigns and domestic abuse being discussed more openly than ever, the Court determined in N v J that it would not take the alleged behaviour into account when considering the division of assets.
In order for a Court to consider conduct, the court must first decide whether the facts meet the conduct threshold, which is set at a high or exceptional level. The Court must then decide if that wrongdoing has had an identifiable negative financial impact upon the parties, that is, the conduct must be ‘material’ to the outcome. This bar is also very high. The court will also consider whether a fair distribution can be achieved when considering the other s. 25 criteria, without taking into account any allegations of conduct and whether any proven conduct issues would make any difference to the outcome.
In N v J, the Judge explained that though domestic abuse is ‘vile and indefensible’, they do not consider that the role of the Family Court is to impose fines, penalties or damages, nor should it decide on moral blame.
This further clarifies the law and approach by the Court, when considering conduct in the context of domestic abuse, that resolving finances in divorce is about fairness and needs rather than seeking punitive remedies. The Family Law Company helps clients in seeking solutions to financial matters. We also offer sensitive and informed support to assist survivors of Domestic Abuse navigate the legal system and access Legal Aid where possible. Please contact us to book your free initial advice consultation.
If you are experiencing, or are a survivor of, domestic abuse, you can also access support through the following organisations:
PDAS: 0800 458 2558
Women’s Aid 24-hour helpline: 0808 2000 247
ManKind: 01823 334 244
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