THE issue of conduct in divorce reared its head once again recently in the reported case of OG v AG [2020] EWFC 52.

Not to be confused with ‘Unreasonable Behaviour’ which is a fact to prove the irretrievable breakdown of a marriage in divorce and dissolution proceedings; ‘Conduct’ is one of the factors which a court must have regard to when considering the division of finances between the parties.

The key phrase in Section 25(2)(g) Matrimonial Causes Act 1973 is that the court shall have regard to conduct: “if that conduct is such that it would in the opinion of the court be inequitable to disregard it”.

It is an extremely high bar to clear in financial proceedings for one party to successfully claim that the other party’s conduct is so bad as to affect the level of financial award.

The four common instances of ‘conduct’ are as follows:

1) Gross and obvious personal misconduct – including economic misconduct

Where for example one person abuses the other such to impair their future financial needs.

2) Adding back

When one party has disposed of assets to purposely deprive the other person of them, the court is able to ‘add back’ those assets, so that the deprived party will still benefit from the other assets.

3) Litigation misconduct

Where one party has conducted the litigation so poorly, most commonly being the non-disclosure of financial information.

4) Drawing inferences

The court is able to make assumptions as to the level of available assets following non-disclosure by one of the parties. As displayed in OG v AG, despite findings being made against both the husband and wife, bad conduct will very rarely result in a stand-alone financial award for the ‘wronged’ party. The more likely sanctions will be costs, inferences and adding back of assets.

Mostyn J summed up his approach in the judgement:“The financial remedy court is no longer a court of morals…. It is unprincipled for the court to stick a finger in the air and arbitrarily to fine a party for what it regards as immoral conduct.”

For further help or advice, please contact our Matrimonial Law Partner, Andrew Smith, on 01904 561403 or Andrew.smith@luptonfawcett.law