What Does Conduct Mean In The Form E?
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 account 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.”
What Exactly Does This Mean?
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.
What Sorts Of Things Will Be Successful In A Conduct Argument?
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:
- In H v H (Financial Relief: Attempted Murder as Conduct) [2006] 1 FLR 990 the conduct of a husband who stabbed his wife so that she was unable to work, and refused the sale or letting of the family home, was described as conduct at the very top end of the scale, because of its financial consequences on her earning capacity, thus entitling the wife’s needs to be given a higher priority from the husband.
- In A v A [2012] All ER (D) 108 litigation conduct through failure to disclose assets and engage in proceedings resulted in a party being awarded 50% of the assets, plus an uplift in respect of the other party’s conduct.
- Financial dissipation through gambling has also been held to be conduct in M v M (Third Party Subpoena: Financial Conduct) [2006] 2 FLR 1253, although…
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 used to have was so confusing to couples as it implied that fault would be relevant to Judges when in reality the contents of the divorce petition routinely played no role at all in the financial and/or children proceedings. Since April 2022, we have of course had ‘no fault’ divorce. But the test for establishing relevant ‘conduct’ for financial proceedings remains as high as ever.
If you consider your case will satisfy the 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 have more questions about this topic or any other legal issues arising on divorce or separation, please do get in touch as we are always happy to help. You can call us on 0203 488 4475 or email contact@
Author Name: Editor
Published content by The Divorce Surgery Editorial Team.
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