This article was originally published in The Times, and can be accessed here. 

It has become axiomatic for divorce lawyers to advise their clients that poor behaviour on the part of one spouse will only be relevant to the financial settlement in the most exceptional circumstances. Whilst this remains the position, two recent cases suggest a slight widening of the scope of behaviour which may be taken into account.

The wording of the applicable statute, the Matrimonial Causes Act 1973, requires at s25(2)(g) that the court, in determining the appropriate financial provision to be made on divorce, have regard to “the conduct of each of the parties, if that conduct is such that it would in the opinion of the court be inequitable to disregard it”.  The bar remains that set in Wachtel v Wachtel [1973] Fam 72: the conduct must have been “obvious and gross”.

Many cases where misconduct has been taken into account have involved incidents of violent criminal behaviour. Examples include Kyte v Kyte [1988] 1 FLR 469 where the wife had actively assisted her husband in his suicide attempt; and C v T [2009] All ER 43 (Jun) where the husband had sexually abused his grandchildren. The other main theme is where the conduct has had financial consequences, such as L v L [1994] 1 FCR 134 where the husband was a compulsive gambler.

However in the recent case of FRB v DCA [2020] EWHC 754 (Fam), misconduct which was neither violent nor financial, but which caused emotional damage to the other spouse, was considered conduct which had to be taken into account. The wife had failed to tell her husband that he may not be the biological father of her child, and he only discovered that he was not the child’s natural father after the marriage broke down, when the child was almost eight. Mr Justice Cohen took this into account in determining the appropriate financial award.

Also decided this year was T v T [2020] EWHC 555 (Fam), where the husband had had a secret second family for 13 years. Here too, Mr Justice Holman decided that he could not ignore this in deciding what award to make as it was “hard to imagine a more grave or more sustained assault upon a marriage” other than severe abuse or criminal behaviour.

Cases where conduct is relevant will remain rare; and where it is, the financial effect will continue to be hard to predict. However, it seems clear that, to the types of conduct that might impact the financial award, can now be added extremely poor behaviour which has caused emotional damage to the other party. The threshold though remains high. The revelations in these two recent cases were sufficiently shocking to clear it. Would the same be true of years of more subtle emotional abuse which cumulatively took a heavy toll on the victim? Perhaps that is the next development.