ENGLAND & WALES Trends and Developments Contributed by: Alex Carruthers, Oliver Heeks and Sian Brooks, Hughes Fowler Carruthers
practitioners propose that there should be great - er recognition of domestic abuse as conduct. Other practitioners argue that domestic abuse is already factored into financial remedy awards, through the court’s determination of a party’s needs, and that to include domestic abuse as an example of conduct would increase litiga - tion and costs and undermine the shift to no- fault divorce that occurred in 2022 following the Divorce, Dissolution and Separation Act 2020. The importance of this issue has only increased following research into the scale of domestic abuse among divorcing parties. It was recently found that 29% of divorcing spouses reported that the abusive or controlling behaviour of their spouse was a reason for the breakdown of their relationship. What is meant by “conduct” and how is it managed in court proceedings? Under current case law, set by Mr Justice Mostyn in OG v AG (2020) EWFC 52, there are four cat - egories of conduct that behaviour can fall into: • gross and obvious personal misconduct – the conduct must have a financial impact for it to be considered relevant to proceedings; • wanton and reckless dissipation of assets; • litigation misconduct – this is usually penal - ised in costs; and • failure to provide full and frank financial dis - closure about finances. Case law has held that the threshold for the first category is extremely high. Notable examples of conduct under this category include H v H (2005) EWHC 2911 (Fam), (2006) 1FLR 990, where a husband’s attempted murder of his wife – result - ing in him being sentenced to 12 years’ impris - onment – was held to be relevant conduct
This approach has been upheld in subsequent case law, with the current iteration of the law set out in the case of N v J (2024) EWFC 184, in which Mr Justice Peel stated that he “struggle[d] to envisage many situations where personal mis - conduct will have a material impact on the ulti - mate evaluation” – thereby further clarifying that, in the vast majority of financial remedy cases, domestic abuse will not impact on awards in the financial remedy courts. After an analysis of recent case law, Mr Justice Peel noted that “the high bar to conduct claims established in the jurisprudence… is undisturbed by the recent focus on domestic abuse in society and [in] the family justice system”. This case also endorsed the procedure to be fol - lowed in conduct cases, as set out in Tsvetkov v Khayrova (2023) EWFC 130. Where a party relies on conduct, there is a two-stage process. At the first stage, the party asserting conduct must prove the facts relied upon, that those facts meet the high threshold for conduct, and that there is a negative financial impact on the other party. At the second stage, the court will consider how the conduct should impact on the outcome of the financial remedy proceedings, bearing in mind the Section 25 factors. Conduct allegations should be introduced as early as possible in proceedings and should be set out clearly at Section 4.4 of the party’s Form E, so that the court can provide case manage - ment directions at the first appointment. Recent discussion on conduct in financial remedy proceedings Practitioners who believe that there should be greater recognition of domestic abuse as con - duct cite a multitude of reasons, including:
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