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Iceni Magazine | September 23, 2020

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Does Behaviour have an Affect on your Divorce Proceedings?

Does Behaviour have an Affect on your Divorce Proceedings?

Rachel Ward, Head of Family at Aticus Law explains “It is often very difficult to explain to clients that the Family Court does not routinely take behaviour into account in financial remedy applications.”

Only conduct, which would be inequitable to disregard, to quote from the statutory test in the Matrimonial Causes Act 1973, s 25(2)(g). Even if the conduct in question passes this high threshold, it is rarely, if ever, the key deciding factor.

What is Conduct?

Conduct is but one of eight factors under the Matrimonial Causes Act 1973,  s 25(2) to which the court must have regard as well as the first consideration being the welfare of minor children.

In an episode of ‘The Split’ on BBC 1, Hannah Defoe, the high-powered lawyer was seen reviewing a Form E on the McKenzie case. The contents of the said Form E, which is used within proceedings to disclosure financial information, were discussed with her client. What was clear to family lawyers was that Mr McKenzie was citing conduct issues, including the wife’s excessive drinking. Hannah Defoe’s response to this was inaccurate, what should have been advised was that it would have no bearing on the case. Any real family lawyer advising Mr McKenzie, would have advised him that this was not appropriate to cite within Form E.

Form E at paragraph 4.4 makes provision for allegations of conduct. The notes indicate that bad behaviour or conduct by the other party will only be taken into account in very exceptional circumstances, when deciding how assets should be shared after divorce/dissolution. The notes then indicate that if the party feels that conduct should be taken into account, the client should identify the nature of the behaviour or conduct. As we have seen, clients should be discouraged from making unnecessary allegations, although it is understandable that a litigant in person may well regard the format of Form E as encouraging the raising of allegations of conduct.

What should you do about Conduct?

It is advised to seek independent legal advice. Citing numerous allegations of bad behaviour, including excessive drinking or marital affairs will only inflame the situation and in turn lead to protracted costly proceedings. Whilst all family solicitors understand that one party may feel more aggrieved than the other, using this platform to vent frustrations will not lead to a happy outcome for either party.

That is not to say, that if a party has purposely acted in such a way that ignoring this behaviour should not be taken into account, but a party should be aware the 2 main principles are sharing and need and to compensate someone for conduct is not something one should focus on during their case.

It is often seen that a party can focus on a new partners income or the fact the spouse is wining and dining their new partner and the client can become embroiled in trying to sabotage that sort of behaviour. However, in reality this will not be a factor the judge will take into account unless it is excessive and inequitable to disregard. Having a family solicitor, a mediator, a counsellor can help you focus on the important issues, by looking at the situation without any emotion and guide you through what is probably one of the most difficult times of your lives.

This article was supplied by Aticus Law – Expert Family Law Solicitors Manchester.


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