“…And the Dish ran away with the Spoon”
In a recently reported case, (now fully reported here) the wife in financial remedy proceedings may now lose thousands of pounds after what was described as a ‘wooden spoon incident’ involving the parties’ 13 year old daughter. In what was a case more about a change of circumstances (a ‘Barder’ event) rather than conduct (under S.25 MCA 1973) it just goes to show what happens outside court can have just as much impact on financial proceedings as what happens inside the courtroom.
In the case, the wife apparently stands to lose £44,000 after the order originally made giving her 70% of the assets, is to be reviewed following a criminal prosecution arising from the altercation between the wife and her eldest daughter. The wife received a conditional discharge because of the incident. As a result, the two sisters both no longer live with the mother, a factor that had been the original premise upon which the court at first instance determined the unequal split in the matrimonial home equity in favour of the wife. The girls are now residing with their father. As a consequence, the husband is now entitled to appeal the original decision. According to Mr Justice Holman his appeal, “has a real prospect of success“.
A change in circumstances
We have recently discussed the situation and position in financial cases where there has been a change in circumstances. Our blog post here discussed the case of Critchell v Critchell. But what of conduct itself, is it something that the court will necessarily take into account when determining what financial orders should be made in divorce cases?
‘Conduct’ forms part of the checklist that the court must have particular regard, contained within S.25 Matrimonial Causes Act 1973. It is set out at S.25(2)(g) and is defined as, “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’’.
“Inequitable to disregard”
The words “inequitable to disregard” are the essence of the provision, and needless to say the subject of much judicial activity. Whilst there are many interpretations of this, what the case law does reflect is the need for the conduct to be “gross and obvious” if it is to warrant a reduction in the financial provision for the perpetrator.
Financial or Non-Financial
There are two categories of conduct in this context. One is the financial misbehaviour of a party, and the other is conduct other than financial – and significantly more than that involving a wooden spoon. Indeed, there are a number of cases where ‘non-financial conduct‘ ranging from serious sexual offences (C v T), attempted murder (H v H (Financial Relief: Attempted Murder as Conduct)  EWHC 2911) to assisting or alternatively taking no steps to prevent a spouse’s attempts at suicide (Kyte v Kyte  Fam 145  3 All ER 1041).
‘Financial conduct‘ cases range from issues such as failure to provide honest financial disclosure (B v B (real property: assessment of interests)  2 FLR 490) or other financial dishonesty (such as in H v H (Financial Relief: Conduct)  1 FCR 225).
This is distinct from conduct under S.25(2)(g). It concerns the way in which a party conducts the litigation itself. In those situations, say for example where a party has consistently delayed in providing disclosure, or failed to attend court for a hearing, the penalties are more likely to be felt in the form of costs orders against the party at fault. Rarely does it impact on the overall division of the matrimonial pot.
Conducting a Conduct case
So, as we have hopefully illustrated, it is not every case that will have ‘conduct’ as part of the mix. It certainly requires more than a wooden spoon incident to satisfy the high hurdle set by the jurisprudence.
But if you think you have a realistic prospect of meeting that benchmark then you should set it out at the earliest opportunity, usually in the Form E (at paragraph 4.4). It should be addressed at the First Appointment and directions given by the District Judge including provision for detailed statements.
Alternatively, and as a means of perhaps keeping the temperature down in the proceedings as a whole (and encouraging an environment which will better promote settlement and save costs) then reserve it as an issue until after the Financial Dispute Resolution hearing. It is as is often said, a ‘case-specific’ call, but raising conduct of itself is not to be encouraged or taken lightly. It should only be brought into the mix in extreme circumstances.
If you have had a recent change in circumstances or think conduct is something that may be relevant to your situation or wonder if there are grounds to justify revisiting your recent final order in matrimonial proceedings, why not ask Paradigm Family Law’s specialist family lawyers for advice. Call us on 0845 6020422 or email us at [email protected] and ask for James Thornton or Frank Arndt.