Generally speaking, a parties’ conduct is not usually taken into account when the Court’s are considering how the matrimonial assets should be distributed between the parties.
The Courts are aware of the fact that matrimonial finance proceedings can be extremely stressful for both parties. There are worries for both parties as to where they will now live, how they will be rehoused, and whether there will be enough money awarded to them for them to be able to begin again. The Courts therefore expect an ‘ordinary run of fighting and quarrelling which occurs in an unhappy marriage’ and therefore they do not take this conduct into account as this would undermine any contribution that a party has made towards the marriage.
However, there have been occasions within certain matrimonial finance cases where the Court has deemed it ‘inequitable to disregard’ a parties behavior, and thus the offending party has received less than they were entitled to than if the conduct had not been carried out. The conduct in question need not have taken place during the marriage.
In S v S 1982 12 Fam Law 14 The Husband has committed incestuous offence with the parties daughters. As his behavior contributed towards the breakdown of the marriage, the Former Matrimonial Home was transferred into the Wife’s sole name.
In another case, H v H (Financial Relief: Attempted Murder as conduct) 2005, a Husband had subjected the Wife to a horrifying ordeal whereby he attempted to kill her. This attack was witnessed by the parties two children. Given the fact that the Husband was going to serve time in prison and therefore be unable to contribute financially whilst incarcerated, and that Wife’s earning capacity was completely destroyed as a result of her suffering both mentally and physically as a result of the attack, the Court thought it reasonable to award the wife three times more of the matrimonial assets.
In Al Khahib v Masry 2002 The Husband abducted the children to Saudi Arabia and refused to reveal the true value of his assets. The Court deemed his behavior in relation to the children to amount to conduct which was ‘inequitable to disregard’.
In S v S (Non Matrimonial Property: Conduct) 2006 the court did not award a settlement in favour of the Wife who had been assaulted by Husband. The Courts were reluctant to offer any guidance as to when it is deemed appropriate to reduce a parties award. Conduct of the parties is merely one aspect of Section 25 principles when determining how matrimonial assets should be divided, and for conduct to be taken into account, it appears from the above case law that it must be of severe magnitude in order for the Courts to intervene. Sir George Baker P suggested a test of ‘the gasp factor’ in W v W 1976.
If you need advice in relation to matrimonial finance proceedings, please contact us.