Simon Thomas
Posted on 9 May 2017

How the Court decides who gets what in a divorce

When a marriage breaks down, one of the most important areas to be resolved is the future financial arrangements between the parties.

The law on this topic is relatively straightforward. As we have often mentioned, section 25 of The Matrimonial Causes Act 1973 remains the starting point for all such cases. That section sets out the basic factors which have to be considered before a decision is made as to how the finances belonging to both parties are to be adjusted. One of those factors is what is described as 'conduct'.

What does conduct mean in this context?

The Act states that it is necessary to have regard to 'the conduct of each of the parties, if that conduct is such that it would be inequitable to ignore it'.

Having said that, the law on the subject is clear, the way that the law is interpreted in individual cases makes it more difficult to predict the effect that bad conduct may have.

Examples of conduct which have affected the outcome of a financial claim

  • deceitful financial dissipation through gambling
  • a deliberate attempt to deceive the other party and the court as to the value of assets
  • a physical assault which had financial consequences in that it prevented the former wife from working
  • a false report to the Police by a wife making allegations against her husband, which were subsequently found to be untrue and which originally resulted in the husband being excluded from the matrimonial home

Examples of conduct which have not affected a financial claim

  • A failure by a husband to make full disclosure of his financial position which was discovered before the case was finalised (although the husband wasordered to pay all the costs of the case)
  • An assault by the husband against the wife of which the husband was found guilty (on the grounds that the financial position of the wife was not adversely affected by the bad conduct)
  • Spending by a husband of large sums of money on his gambling addiction when he had tried to wean himself off the habit by attending therapy and counselling (on the grounds that the husband had acknowledged his problem, had not tried to conceal it from his wife and had taken steps to deal with it)

The conventional approach

It would be true to say that for many years the courts have not encouraged arguments that conduct during the marriage should be taken into account when finances are being resolved, except in the most serious cases where the bad conduct can be shown to have had a direct financial impact on the victim. Indeed, in a prominent case decided in 2006, a judge in the Court of Appeal said, “In most cases, misconduct in not relevant to the bases upon which financial claims is resolved today”.

Part of the reason for that conclusion was the feeling that the purpose of the inclusion by Parliament of the reference to 'conduct' in the statute was that it should be relevant only where the conduct had resulted in serious adverse harm (usually financial) to the victim. The courts were also anxious not to encourage long and potentially expensive trials about conduct in cases involving money where to do so would often be fruitless.

Are we about to see a hardening of the approach to bad conduct?

There is some evidence that there is now a hardening of opinion as to when conduct should be regarded as relevant.

A High Court judge has recently decided a case where both parties argued that the conduct of the other was such that it should be taken into account in deciding how the finances should be distributed between them.

The marriage had only lasted for two years when it broke down in dramatic circumstances in April 2016. The wife stabbed her husband repeatedly with a kitchen knife during an argument over the dinner that she had prepared for him. She was charged with attempted murder and wounding with intent, and was remanded in custody. While in custody she gave birth to the parties’ son.

The wife stood trial at the Crown Court. She was acquitted, the jury accepting her case of self-defence. In subsequent proceedings under the Children Act 1989, the husband’s contact to his son was limited to monthly sessions supervised in a contact centre.                                                                      

The husband later attempted to abduct the child but was prevented from doing so by members of the wife’s family. He later fled to Minnesota, from where he participated in the hearing by video link.

In her claim, the wife alleged the following conduct:

  • rape
  • coercive control
  • assault
  • stalking
  • kidnapping
  • stealing the money (£5,000) given to her on her wedding by her grandmother
  • generally being a monster
  • being unpleasant to the wife’s 'saintly' mother
  • possessing the most repulsive parents imaginable                                            

During the course of the proceedings it emerged that the husband had diverted the waters from the devastating floods that hit the county in March 2015 from his place of work into the village, causing widespread destruction, imperilment of many locals and the death of an elderly resident. These were added to W’s complaints.

For his part, H alleged stabbing, culinary incompetence, self-pity, and being a member of a large sanctimonious but dysfunctional family that was set on his ruin. He alleged that W was in fact beneficially interested in the farm owned by her parents, necessitating the intervention by them in the proceedings.

The judge concluded that he 'believed the wife 100% and the husband 0%'. The judge then had to decide whether the conduct of which the husband had been found guilty was such that it should be reflected in the way the financial resources of the parties should be distributed, even allowing for the fact that this was a very short marriage. In reaching the conclusion that the conduct was so bad that it would be “inequitable to ignore it” (as required by the statute), the judge said:

“Section 25(2)(g) was not a redundant, toothless anachronism. It had real teeth and it was time that it was used to send a strong message that misconduct of this nature would not be tolerated, and that a heavy award (in effect of damages) should be made.

This was an opportunity for the Family Court to push back the frontiers. The conduct of the husband here was such that it would be inequitable to ignore it. For all these reasons an award in the sum of £10 million would be made”.

It remains to be seen whether this case marks a change in the approach that the courts will take in dealing with allegations of conduct in financial cases in divorce proceedings. Certainly the behavior of the husband in the case just mentioned was extreme and is unlikely to be regarded as the norm. However it is a timely reminder that bad conduct is a powerful weapon which can be brought to bear in appropriate situations.

For more information or some preliminary, confidential advice, please contact Simon Thomas, Head of the Family Team by telephone +44 (0)1392 687630 or by email