The impact of conduct in ancillary relief

District Judge Roger Bird reports on when bad conduct can punish a spouse

Ask members of the public if they think that bad behaviour on the part of a spouse ought to be taken into account when deciding financial disputes between spouses and most will answer that it should be; such a statement is regarded as self-evident, even by many members of parliament.

The courts take a different view, and one of the burdens on family lawyers is having to explain to clients that the courts operate in a different world from them.

Inequitable to disregard

Section 25(2)(g) of the Matrimonial Causes Act 1973 requires the court to have regard to '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'.

Two immediate points arise for comment.

First, not just any conduct will do, but only conduct which it would be inequitable to disregard.

Decisions as to what is inequitable can only be determined in the context of the facts of the particular case before the court.

Second, even if conduct has to be taken into account it is rarely, if ever, the key deciding factor.

The Act specifies eight factors to which the court must have regard, as well as the first consideration of the welfare of minor children.

None of these is paramount or exclusive of the others.

The court must take a balanced view.

So how have the courts actually dealt with conduct in those cases where it is relevant? The cases may be divided into three classes.

Non-financial conduct

Mere bad behaviour is not enough.

It normally has to be demonstrated that some ascertainable detriment has flowed from it.

For example, where a husband was sentenced to imprisonment for a violent assault on and rape of his wife it was held that the assault could not be overlooked but this was linked with the fact that he had rendered himself incapable of supporting the family (H v H (Financial Relief: Conduct) [1994] 2 FLR 801).

Similarly, where an assault on the wife resulted in a reduction in her earning ability that had to be reflected in the award (Jones v Jones [1976] Fam 8).

A man who married bigamously and therefore placed himself in a position to apply for ancillary relief by his deceit was held not to be entitled to relief (Whiston v Whiston [1995] 2 FLR 268) although, where both parties were aware of the fact that the marriage was bigamous it was held that the bigamy in itself did not preclude an application (Rampal v Rampal (No 2) [2001] EWCA Civ 989).

In some rare cases, conduct has been held to be so bad that it dominates everything else.

In Evans v Evans [1989] 1 FLR 351, the wife, after 35 years of separation during which the husband had regularly paid maintenance, incited contract killers to murder him and was sentenced to imprisonment.

The order in her favour was discharged, the court observing that, had it not done so, the public 'might think we had taken leave of our senses.' However, in another case which was almost as bad, where the wife had assisted her suicidal husband in his suicide attempts so that she could benefit and set up home with another man, the wife's lump sum was merely reduced from 14,000 to 5,000 (K v K (Financial Provision: Conduct) [1988] 1 FLR 46).

Even in Clark v Clark [1999] 2 FLR 498, which Lord Justice Thorpe described as 'one of the most extraordinary marital histories that I have ever encountered ...

as baleful as any to be found in the family law reports' and said that it would be hard to conceive of a graver case of marital misconduct, the lump sum previously awarded of 552,000 was not extinguished but reduced to 125,000.

Financial conduct

Cases where the conduct of one party has had a clear and detrimental effect on the fortunes of the parties are more straightforward.

In one case where a husband had dissipated the family assets the court held that he could not then claim as much of what was left as if he had acted reasonably (Martin v Martin [1976] Fam 335).

In another case, a farmer had 'obstinately, unrealistically and selfishly trailed on to eventual disaster, dissipating in the process not only his own money but his family's money, his friends' money, the money of commercial creditors unsecured and eventually his wife's money'.

He was restricted to the minimum amount necessary to rehouse himself (Beach v Beach [1995] 2 FLR 160).

Litigation misconduct

In B v B (Real Property: Assessment of Interests) [1988] 2 FLR 490, where a wife's behaviour in relation to discovery and dishonest statements had amounted to contempt as well as conduct, it was held that the award which she would otherwise have received should be reduced to take account of the conduct.

However, until recently, the better view, as expressed in P v P (Financial Relief: Non-disclosure) [1994] 2 FLR 381 seemed to be that such behaviour should normally be reflected in costs rather than the award itself, but the pendulum may have now swung back.

The law does not stand still and there are two recent relevant decisions which are of interest.

In B v B (Financial Conduct: Welfare of Children and Conduct) [2002] 1 FLR 555 the sole asset was 124,000.

The husband had failed to disclose a bank account, had paid money to his mother and had abducted a child to Italy for which he was imprisoned.

The wife received 124,000, which was only just enough to rehouse her, and the husband nothing.

It was held that the husband's conduct was a good reason for departing from equality.

At the other end of the financial scale, in Al Khatib v Masry [2002] EWHC 108 (Fam) the husband had deliberately failed to make full disclosure and had unsuccessfully tried to divest himself of assets to defeat the wife's claim.

He had also abducted the children to Saudi Arabia.

His grave misconduct was bound to increase the award to the wife.

She was awarded

26 million, which was more than she was entitled to under White v White [2000] 3 WLR 1571 HL (see [2001] Gazette, 1 June, 39) but the husband had only himself to blame.

Part of the award was a litigation fighting fund of 2.5 million.

Judicial level

Who should hear cases in which contested issues of conduct arise? In the president's practice direction (Family Division: Business: Distribution) dated 6 April 1988 it was provided that when deciding whether to transfer ancillary relief applications to the High Court regard should be had to, among other factors, 'any substantial contested allegations of conduct'.

But in deciding whether a district judge or a High Court judge ought to try a case it would seem that conduct alone is rarely enough to justify transfer.

The modern practice seems to be that district judges will deal with all ancillary relief applications except those where the value and complexity of the assets make it essential for a judge of the Family Division to hear the case.

District Judge Roger Bird sits at Bristol Combined Court Centre