For conduct in divorce proceedings to be relevant in an application for a financial order it must be of a nature that it would be ‘inequitable to disregard’ (section 25(2)(g), Matrimonial Causes Act 1973).
Conduct will only be relevant in exceptional circumstances. A party who pursues inappropriate conduct arguments may find a cost order is made against them.
Court procedure for conduct in divorce proceedings
In this insight we explain the court procedure if one party in a divorce raises conduct within their financial remedy proceedings. For an overview of what amounts to conduct in divorce proceedings see our insight
Financial statement for a financial order under the Matrimonial Causes Act 1973 (MCA 1973)/ Civil Partnership Act 2004
The first stage in an application for a financial order is for the parties to file their financial disclosure using the Financial Statement Form E. At paragraph 4.4 of Form E it states ‘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. If you feel it should be taken into account in your case, identify the nature of the behaviour or conduct’.
Whilst the form makes it clear that conduct will only be taken into account in very exceptional circumstances it can be tempting for parties to go into detail about the other’s bad behaviour. In WC v HC (Financial Remedies Agreements) [2022] EWFC 22, [2022] 2 FLR 1110 at para [1(i)] Mr Justice Peel said that ‘Parties, and their legal advisers, may be under the impression that to describe the other party in pejorative terms, and seek to paint an unfavourable picture, will assist their case. It is high time that parties and their lawyers disabuse themselves of this erroneous notion’.
If your spouse has made allegations about your behaviour take early legal advice to understand whether conduct is likely to be relevant. If not relevant invite your spouse to agree to a recital confirming they will not pursue conduct in divorce proceedings.
Court directions and filing of statements if your spouse raises conduct in divorce proceedings
If your spouse continues to seek to run a conduct case, the court will need to make directions for your spouse to file a concise statement addressing:
- What conduct exactly he/she is seeking to rely upon;
- the basis for his/her conduct allegations; and
- what effect the alleged conduct should have on the financial remedy application.
The court will also give you permission to file a statement in answer, if so advised.
Cost rules
In financial remedy proceedings there is a ‘no order as to costs rule’ (FPR 28.3(5)), which means the court will not make a cost order unless appropriate to do so taking account of the conduct of one of the parties (whether before or during the proceedings). The court may make a cost order against a party if it considers it unreasonable for a party to raise, pursue or contest a particular allegation or issue.
Pleading conduct in divorce proceedings- conclusion
It will only be in exceptional cases that conduct in divorce proceedings is relevant. Tempting as it may be to list allegations of behaviour or conduct seek early legal advice on whether the behaviour will be relevant. Significant costs can be incurred in pleading conduct that is not relevant and may result in cost orders being made.
The team at Watson Morris Family Law can help you navigate the law on conduct in divorce proceedings. For an initial free no obligation discussion to see how we can help please contact us.
Written by Caroline Watson
August 31, 2023
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