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When Does Bad Conduct Matter?
Perhaps unsurprisingly many people contemplating divorce are upset in some measure by the behaviour of their spouse or civil partner. They may shy away from mentioning, let alone complaining about it, or be so outraged that talking about that behaviour is uppermost in their minds; obviously the spectrum is wide.
Mild behaviour petition
If none of the other grounds for divorce/dissolution exist—and usually these days adultery is the only other contender – Family lawyers then generally find themselves compiling 3 complaints that a divorcing spouse will volunteer, so as to meet the (admittedly low) bar for these purposes of what is known as a ‘mild behaviour petition’ .
With one recent well publicised exception ( the case of Mrs Owens, where the particulars of her husband’s behaviour were deemed by the court to be just not strong enough, when unfortunately for her he decided to defend ) such mild behaviour petitions generally are uncontested and go through ‘on the nod.’ The solicitor therefore has to gauge what needs to be alleged to get past the judge considering it in the course of the undefended postal procedure without going in too hard and upsetting the respondent spouse in the next step which is to sort out the finances.
At the other end of that spectrum however, the behaviour may be so awful or egregious that the injured spouse feels strongly it has to be said. Some take the view that even so, it need not be spelt out – but whilst ‘no fault’ divorce remains barely on any governmental reform agenda, it is a matter of judgment as to how specifically to allege what the badly behaved spouse has done.
Of course, one person’s truly terrible behaviour is another’s diurnal acceptance and the courts have long since turned away wherever possible from giving spouses an opportunity to complain about each other in any circumstance where they have to investigate and take a final view on who did what. The fact which is most difficult for separating couples to grasp at the outset is that whilst we have fault-based divorce, that fault is not reflected in the financial sort out. Indeed, it is long established law that for marital conduct to play any part ( what would otherwise be a judicial distribution of assets or income) it has to be wholly exceptional and such that it has in effect worsened the financial position of the recipient spouse, that is whether by infliction of a debilitating injury (stabbing, shooting etc.) or a major / fraudulent removal of assets beyond the jurisdiction or reach of the courts.
Nonetheless, there are all too many cases where one spouse is in fear of ongoing violence from the other such that he—usually she—may need the protection of the courts by way of injunction or order that the abuser leave the matrimonial home. In these instances, it does more than look odd if the petition initiating the proceedings is mild, limp and without reference to past violence or psychological abuse. Then the conduct can be spelt out and referred to in the concomitant application to the court for relief and the court is put on notice, as it were, of how things have been and why the marriage has broken down.
Similar considerations may apply where there are serious allegations of ongoing abuse of children which are clearly going to lead to an application within the suit for divorce for a Child Arrangements Order specifying such aspects as where a child is to live and which parent he or she will see when and where.
These days judges are more likely to take seriously any allegation of domestic abuse and require it to be investigated and indeed the definition has widened considerably from ‘simple’ violence to controlling, coercive or threatening behaviour and victims have become ‘survivors’ who may be expected to speak out.
So back to the allegations of bad conduct … if truly bad it is often helpful to hear them all and render them succinctly in a petition where they may well be relevant or instructive to those sitting in judgment on issues arising, whether financial or domestic. Those spouses on the receiving end will in any event have the opportunity to answer the assertions if pursued by the accuser in the children or monetary aspects of the divorce. Allegations of illegal drug use or money laundering or excessive alcohol consumption or vitriolic name calling come to mind but it is in the end all a matter of judgment, rather than primarily a cathartic experience for the accuser who may be speaking out for the first time in years.
So much for the petition and grounds for divorce.
What is more likely to feature in divorce and dissolution these days is what has become known as litigation conduct. That is where one party behaves so outrageously within the proceedings that it renders a fair outcome impossible or difficult or majorly increases costs unnecessarily for the other or delays, confounds and obstructs the suit or procedure as a whole.
Examples are legion, from one person secreting funds from view or entering into fake transactions or purporting to dispose of a business or chattel (to be reclaimed later from a friend), plain lying about interests or directorships, shares or foreign accounts, to failing to turn up at court or comply with orders … and so on. Such tactics can range from low grade (funds lodged with another family member) to mega deceits involving dubious offshore trusts, but the general intent is to obstruct or delay justice and raise the cost of it for the other spouse.
So what happens in such cases?
Again, the courts are not keen to hear every complaint and punish every act of wrongdoing, but if the litigation conduct is bad enough, it will order that the complainant spouse has to make a full statement setting out all such acts and then for the perpetrator to do one in response and then the court will hear the matter with a view either to adapting its potential financial order to meet the case — or more likely in cases of litigation misconduct – to make the offending party pay some of the costs incurred as a result , in an attempt to even up the damage.
This has to be a last resort and where one spouse is showing an inclination for such conduct it is better to draw it to the attention of the court as soon as possible and seek an order for costs to ‘discourage’ further attempts to thwart fair distribution by the judicial process.
Needless to say, this can be hard for litigants in person already struggling with an unfamiliar and rule-bound procedure.
Eileen has over 40 years of experience in Family Law matters and guides clients through all aspects which need to be sorted when a relationship is breaking down.
She was a former chair of the Law Society’s Family Law committee and has contributed to law reform. She set up Fisher Meredith 42 years ago and was Senior Partner and Head of its Family Department before the merger with Bishop & Sewell where she headed up a large team of dedicated lawyers with a wide range of skills.
Eileen deals with all aspects of relationship breakdown and will achieve for spouses and civil partners and cohabitants suitable settlements in accordance with English law relating to finances, property and children issues arising. She is happy to tackle the partners of those hiding assets or being overly controlling or abusive over money or children and to draw up pre-nuptial and post-nuptial agreements.
Eileen can judge from experience when a case is suitable for mediation or collaborative law and when it is not. She pursues these processes carefully and at the pace the clients wish to go.
Eileen has a reputation for being firm but fair and her clients refer their friends for years to come.