Conduct is rarely as relevant as you think

Parties who are involved in divorce proceedings can often be surprised to discover that what their spouse has done makes absolutely no difference in their case.

Many clients will have experienced misconduct by their exes, some of it quite dreadful. Infidelity, domestic violence and abuse and financial impropriety are commonplace in marital breakdown, but to the astonishment of many people, none of it tends to make much difference when it comes to getting divorced and resolving financial issues.

Divorces now take place on a no-fault basis. The sole ground for divorce is that the marriage must have irretrievably broken down. Until 5 April 2022, to show this you had to cite one of five “Facts”, three of which were fault-based; adultery, behaviour or desertion. However, it is no longer possible to commence a divorce application by citing any of these Facts. Your spouse may have been unfaithful, it may have caused your marriage to break down, but it is no longer cited in divorce applications. You don’t need to give a reason to the court as to why your marriage has irretrievably broken down, it will simply accept your assertion that it has.

Your ex cannot oppose the application by arguing that the marriage has not broken down irretrievably; it is now impossible to defend a divorce application, and while it is possible to dispute one on technical grounds (e.g. that the court does not have jurisdiction because neither of your are domiciled or habitually resident in England and Wales, or you are already divorced or divorcing elsewhere, or your marriage was never valid in the first place etc.), disputed divorces are incredibly rare.

As a result, costs orders are also now very rare in divorces. I often find that many clients tell me that they want their ex to pay their legal fees. I have to advise them that it is unlikely that they will recover costs. Costs orders are essentially punitive in nature; they are imposed where someone has done something wrong. Therefore, they have no place in no-fault divorce proceedings, unless the respondent does something wrong by failing to acknowledge service of the divorce application (which causes delay and expense serving them) or wrongfully disputes the application (which is likely to cost the applicant a great deal of pointless expense).

Some divorcing people may feel that being able to file a price of paper at court accusing their ex of being adulterous provides them with some kind of catharsis or a sense of justice being done. However, the reality is that even under the old divorce law, it was pretty pointless. It made no difference to the financial outcome or arrangements for children. Neither, for that matter, did behaviour divorce petitions; the vast majority of them went ahead on the basis that the respondent denied the allegations, but agreed to not defend. Although the court issued a certificate of entitlement stating that the respondent had behaved unreasonably, if it was alleged at a later date to be relevant in relation to finances or child arrangements, the allegations would have to be proven properly at a subsequent court hearing, and the court would then decide if they were true, and if so, whether they were relevant.

In a financial remedy application, (unlike in civil proceedings where costs follow the event, i.e. the loser pays) there is a presumption that both parties pay their own legal fees. Costs orders are only made in very limited circumstances, one of which is where a party is guilty of litigation misconduct (i.e. not complying with court orders).

In child arrangements cases, costs orders are almost unheard of. In almost 30 years of legal practice, I have never seen the court make an order that one party pays the other party’s costs in a case about where children live and how much contact they have with their parents. There are a numbers of rationales for this. Costs orders could diminish parents’ resources available to meet the child’s needs, and parents with reasonable arguments regarding a child’s best interests should not be deterred by the possibility of a costs order. Furthermore, penalising one party by making a costs order is not likely to promote the parties’ ability to work together in relation to their children.

My advice to clients is therefore invariably that they should assume that they will have to pay their own legal fees and that they will not receive an order that other side pays their costs. (The exception to that rule is in property disputes between unmarried couples, which are classed as civil litigation and where the costs orders are the norm).

In financial remedy cases in a divorce, the court must take into account a long list of factors, one of which is conduct; the court can take into account the parties’ conduct if in the opinion of the court it would be inequitable to disregard it. However, in the vast majority of cases, people’s conduct makes not the slightest bit of difference. Unlike civil litigation, where the aim of the litigation is to seek redress by putting right a wrong that has happened in the past right (e.g. enforcement of a debt, damages for breach of contract or personal injury or defamation etc), family litigation is usually about sorting out the parties’ future.

In a divorce financial remedy application, the parties must file a financial statement called a Form E. This is very lengthy and entailed summary of their financial circumstances. One section deals with the issue of conduct. It says very clearly that “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.”

When I draft a client’s Form E, I usually just put “Not applicable” in this section. However, when I read the other side’s Form E, time and again I see this section full of allegations about how awful my client is, despite it clearly saying that it is only taken in account in very exceptional circumstances. There is rarely anything exceptional about these allegations, let alone very exceptional. One does wonder whether the solicitors who drafted these documents for their clients advised them that the conduct was not very exceptional and should not be included.

Of course, to a layperson, it may seem very unfair that things that their ex has done are simply brushed away by the lawyers. However, there are good reasons why the court will not take unexceptional conduct into account.

Many divorces are acrimonious in the extreme. It is not unusual for parties to take diametrically opposed positions, and to argue that it is all the other party’s fault. Yet, in most cases it simply isn’t. It takes two people to make a marriage work and often takes two people to make it fail. It is rare for one party to be completely blameless. Infidelity may have caused the immediate breakdown of the arrange, but perhaps it was a symptom of marital breakdown, not the sole cause. One party may have behaved badly, but it is rarely entirely one sided; I am not suggesting that it is usual equally each side’s fault, but it is rare that one side’s conduct is completely perfect.

An assessment of who is more to blame that the other would be a ridiculous exercise. How do you put a figure on it?

Having to apportion blame would hinder the court’s ability to divide a couples’ assets between them in such a way as achieves fairness and meets their needs. For example, should an unfaithful wife receive less than she needs to meet her and the parties’ children’s needs? The court must put the needs of any minor children first.

Of course, that is not to say that conduct is never relevant. If a husband beats up his wife so badly that she will never be able to work again, that is of course very relevant. If one spouse murders their child, that would inevitably result in him or her receiving nothing.

In most cases conduct is rarely relevant. Focussing unnecessarily on conduct simply complicates matters and hinders the parties’ ability to move on and to concentrate on the future. That may seem unfair and perhaps morally wrong to some, but it is entirely appropriate in family proceedings.


29 April 2024


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