When Abusive Behaviour Affects Divorce Financial Relief

Yael Selig

When is Abusive Behaviour Relevant To Financial Relief on Divorce?

Domestic violence and other abusive behaviours are a contributing factor to many marriage breakdowns. In lesser cases a party may need to be cautious before raising specific allegations of conduct against the other party, following a recent decision.

The specialist family team at Osbornes Law represents parties on divorce and financial matters across London and surrounding regions. We are highly experienced in cases involving domestic abuse, including complex and cross-border matters.

We understand that clients who have been abused during the marriage will seek a financial settlement that fairly reflects the treatment they and any children suffered. However, it’s important to remember that the English courts do not generally apportion fault or responsibility for the marriage breakdown except in exceptional circumstances.

Conduct

The behaviour complained of is often domestic violence, but it could also be coercive or controlling behaviour or financial abuse. Conduct is one of several factors under s25(2)(g) of the Matrimonial Causes Act 1973 taken into account by judges when deciding a financial order that is fair in the circumstances.

To be considered, the behaviour must be sufficiently serious that the court considers it would be inequitable to disregard it. So, how serious will conduct be for the court to actively consider it?

What’s the background?

In this case [1A v R [2024] EWFC 218 (B)], the parties married in 2005 after eight years’ cohabitation. They separated either in March 2022 (on the wife’s (W) case), or August 2023 (according to H).

W actively raised the issue of H’s conduct during their relationship. The allegations included intrusions of privacy, failing to support her in her career and various “inappropriate financial transactions”. She blamed the alleged conduct in part for her having to take early retirement on medical grounds, but she accepted there were other causes for her ill-health.

In broad terms, if the allegations were true they would constitute a pattern of coercive and controlling behaviour. The conduct issue had so far proved a costly element of the litigation, with around £78,417 of the costs incurred relating to that element alone.

The judge made clear “conduct” is only to be taken into account if it is of a highly exceptional nature. Also, it was the cumulative effect of the conduct complained about that had to be considered and not each item individually.

If the conduct threshold was met, the judge then had to consider whether it was proportionate to litigate the conduct issue. Applying this test, he refused to include W’s allegations of conduct for consideration at trial for the purposes of financial relief.

W’s allegations were not sufficiently exceptional so as to meet the conduct threshold – it did not “jump off the page as a factor for consideration in the financial remedy proceedings”.

The judge also took the view that it would be disproportionate to litigate the conduct issue, as it had already cost significant amounts of money and scarce court time. He stressed: “The fact that there are more assets in the matrimonial pot than in many cases does not give a party a free licence to litigate any issue that they choose to do so.”

It was also his view that W wanted to rely on conduct to seek validation and justification of her sense of ill-treatment, but that is not the function of the court.

It means the financial remedies claim will be based largely on the usual sharing principles and the needs of the parties.

What does this mean?

In the rare cases where there is potentially a financial consequence of the alleged conduct of party, the court will have to decide if the allegations should be litigated. In most cases, the impact of conduct on the party affected can normally be taken into account by reference to the usual criteria under s25 MCA.

It is not for the family court in financial remedies cases, to penalise a party for their conduct during the relationship; or to apportion blame for the marriage breakdown. There is also the virtually insurmountable problem of quantifying the impact of conduct in the absence of any identifiable financial impact.

Lastly, misconduct must be directly relevant to the distribution of finances to be entertained. In this case, if the allegations of inappropriate financial transactions had involved dissipation of marital assets – the outcome is likely to have been very different.

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