Many couples who complete their Forms E are frankly a little confused by the following text at part 4.4:
“Bad behaviour or conduct by the other party will only be taken into accunt 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 below.”
The conduct of a party to the marriage is a factor that the court can take into account in financial remedy proceedings. If run successfully, it can affect the division of assets in one party’s favour.
It is however notoriously difficult and extremely rare to run a conduct case successfully in financial remedy proceedings. Whilst personal conduct such as adultery or ‘unreasonable’ behaviour may be valid reasons for divorce, they do not count as enough to establish a conduct argument. Much case law has been centred on the threshold of behaviour that must be met to succeed in running a conduct argument. Essentially, it applies to only the most extreme forms of bad behaviour where it would be inequitable for the court to disregard it in the settlement of the parties’ financial position.
Personal misconduct will have to be very serious to persuade a court it is appropriate to penalise financially the spouse at fault; it is likely to be much easier to establish a conduct argument when financial misconduct has taken place. Here are some recent examples in case law where conduct has been successfully argued:
This demonstrates how rare it is for conduct to apply, and it is important to distinguish this narrow legal concept of conduct from other ‘fault’ areas, e.g. adultery, lack of emotional support, which, whilst hugely upsetting, would not be relevant to the Court in the division of your finances. This is why the ‘fault’ based divorce system we have can be so confusing to couples as it implies that fault is relevant to Judges when in reality the contents of the divorce petition normally play no role at all in the financial and/or children proceedings.
If you consider your case will satisfy the exceptional conduct threshold, you should seek independent legal advice immediately. The Divorce Surgery process will not be suitable for you.
To put it simply, our One Couple One Lawyer approach involves separating couples seeking joint advice. When you come in for an initial meeting, one of the things we will be looking to assess is how well suited you are as a couple to our approach. Many couples we see have serious difficulties between them, but are able to agree, in broad terms, on what their financial resources are. If one or both of you are making allegations so serious that they may amount to conduct (as defined above), then you will very likely need Court adjudication. Happily, genuine instances of conduct only affects a tiny minority of couples.
For further guidance on filling out the Form E, see our handy guide: ‘Financial disclosure and The Divorce Surgery’.
If you wish to know more about whether The Divorce Surgery’s unique approach is right for you, please get in touch and tell us a little about your circumstances.