Concept for separating matrimonial and non-matrimonial assets

One of the questions that is frequently asked by clients is whether their partner’s bad behaviour can be taken into account when determining financial provision in divorce. Should they be awarded larger financial provision due to behaviour, such as adultery or domestic abuse? Whilst a party may feel very strongly about this, it is a common misconception that the bad behaviour of one party will automatically influence the outcome of the financial proceedings.

There is a checklist under Section 25 of the Matrimonial Causes Act 1973 that judges consider when determining how assets should be split, and this checklist includes factors such as current financial needs, the age of each party and relevant physical and mental disabilities. Under Section 25(2)(g), conduct is a factor that can be taken into account in certain circumstances. 

There are four types of conduct which the Court will consider:

  1. Behaviour which, in the opinion of the Court, it would ‘be inequitable to disregard’. In S v S, Judge Burton explained that for conduct to qualify as ‘inequitable to disregard’ it should have about it a “gasp factor” rather than inducing a “mere gulp”. To be relevant, conduct must be obvious and gross ‘so much that to order one party to support another whose conduct falls within this category is repugnant to anyone’s sense of justice’ (as determined by Lord Denning in Watchel v Watchel). Case law has provided examples where conduct has been accepted as relevant and these include instances such as the husband sexually assaulting his grandchildren, a wife’s connivance in the husband’s suicide attempts to gain assets, and attempted murder. While there is no requirement for the behaviour to be criminal, it is generally behaviour for which there are criminal proceedings which will be relevant. Rarely is behaviour such as adultery or, even many forms of domestic abuse, considered relevant to the division of finances. There are exceptions to this, however.
  2. Financial conduct – this relates to cases where spending has been excessive and reckless. One such example was in the case of Norris v Norris. In this case, the husband’s spending far exceeded his income. The husband’s conduct included spending £115,000 on a Ferrari which Mr Justice Bennett found to be reckless in the context of the parties’ financial position.
  3. Litigation conduct – this can include, for example, a failure to provide full and frank financial disclosure or a refusal to negotiate, and, if found, would usually result in a costs order against the party at fault.
  4. Evidential conduct – this is where one party has failed to provide documentation or evidence which they were ordered to disclose, and so the Court can draw ‘adverse inferences’ and conclude that the point has been proved to the detriment of the party who has failed to provide the required evidence.

Regardless of the type of conduct, there are two further points to note: 

  1. To be relevant, the conduct should have had a financial impact on the case; and
  2. Conduct must be pleaded early on in proceedings.

As per the case of Tsvetkov v Khayrova, which concluded in 2023 and dealt with the wife‘s litigation misconduct of the “utmost gravity” in which she “abused the system, and repeatedly lied”, to leave it until a Final Hearing to plead conduct would be “forensically dishonest”. The Court has a duty, amongst other things, to deal with the issue of conduct promptly and proportionately. It is important for parties to understand the types of conduct that will be considered by the Court in order to avoid further expense, and potentially a costs order against them for wrongly approaching the issue. Judges enjoy a very wide discretion in this area so before considering making a claim it is always best to seek legal advice to understand how conduct can affect divorce settlements, and how they should be dealt with during proceedings. 

If you would like help and support please contact our family law team who will be happy to help.