Closing the Door on Conduct Arguments?

The Matrimonial Causes Act 1973 states that conduct must be a factor for the court to consider in determining a financial settlement following divorce if “that conduct is such that it would in the opinion of the court be inequitable to disregard it” (s 25(2)(g)).  This has been cautiously interpreted by family court judges and usually concerns some form of poor litigation conduct or financial implication. It is generally rarely applied, and only if the conduct is extreme.  Examples of this are where the matrimonial pot is recklessly frittered away (Martin v Martin [1976] Fam 335) or gambled away (Vaughn v Vaughn [2007] EWCA Civ 1085).  Where the conduct is not financial misconduct, it is the impact of the conduct upon the matrimonial pot that the court focusses on. In H v H (financial relief:attempted murder as conduct) [2005] EWHC 2911, where H was convicted of attempting to murder W (in the presence of their children), the judge determined that this conduct was a ‘magnifying factor’ when considering W’s needs, and placed those as a higher priority than H’s.

We then had a landmark Court of Appeal case Re H-N and Others (Children) [2021] EWCA Civ 448, where amongst other things, the court gives guidance about how to deal with allegations of domestic abuse (including coercive and controlling behaviour and financial control), and directs focus on the wider context shown by patterns of behaviour.  Family Law practitioners wondered whether this would open the floodgates and at last enable conduct arguments to be run in financial remedy cases where the conduct asserted is domestic abuse.

The recent case of N V J [2024] EWFC 184 puts that firmly to bed with a resounding ’no’.

The case concerned a long civil partnership between N and J.  N had mental health issues which deteriorated from 2012 onwards with particular severity from 2016, he would say because of J’s conduct in having extra partnership sexual affairs and then dishonestly concealing them.  N had required treatment based on false assumptions that he was paranoid, delusional and psychotic.  It was not until 2021 that J admitted he had had paid sexual encounters with other men since 2011.  The parties separated in 2023.  

Determining that N’s conduct claim was not an issue for consideration at trial, Mr Justice Peel held that the high bar to conduct claims was undisturbed by the recent focus on domestic abuse in society and the family justice system.  “In this judgement, I address the difficult and sensitive topic of the interplay between domestic abuse and conduct in the context of financial remedy proceedings” “The question is not whether domestic abuse per se is vile and indefensible, for it indubitably is.  The question is whether the domestic abuse alleged in this case is potentially a relevant factor in financial remedies litigation, in circumstances where ‘conduct’ is, in accordance with both statute and case law, only to be taken into account if it is of a highly exceptional nature”.

Even if this high threshold is met there must be a financial consequence of the alleged behaviour, and it must be material to the outcome.  In most cases a fair outcome is reached by applying the other s 25 (2) criteria.  In other words, raising a conduct argument must be proportionate to the case.

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