CONDUCT SHOULD IT FORM A GREATER PART OF THE DISCRETIONARY EXERCISE. Dornier Whittaker. 21 October 2015

Transcription

1 CONDUCT SHOULD IT FORM A GREATER PART OF THE DISCRETIONARY EXERCISE Dornier Whittaker 21 October 2015

2 SECTION 25 (2) the court shall i.e. must have regard to (g) Conduct...which it would in the opinion of the court be inequitable to disregard. In order to qualify, conduct must be obvious and gross ; so much so that to order one party to support another whose conduct falls within this category is repugnant to anyone s sense of justice : Watchel v Watchel (1973) Fam 72 at 90 per Lord Denning 2

3 CASE STUDY 1 H consultant, W senior Social Care Practitioner; Married 14 years, 3 children: 8, 13 and 15; 6 months prior to separation H persuades W to see a colleague of his, a consultant psychiatrist, W having problems regulating emotions and stressed; W self reports behaviours and H embellishes and adds significantly to these; Psychiatrist opines that W is suffering personality disorder and recommends CBT; Upon moving into new FMH H out of blue informs W that he wants to separate and that she should leave the home as she is a danger to the children; H contacts social care alleging W has a personality disorder and danger to the children and that they should investigate; H makes application in Children Act proceedings for prohibited steps order and CAO, cross application by W. Social care files section 47 report indicating W risk to children; W s job suspended pending investigation; Court orders independent psychiatric report conclusion of the report is no personality disorder and concern about H s influence with the professional involved; W no risk to the children, shared care. W still finding it difficult to find employment, on Social Care records; emotionally exhausted. Conduct within the finances; significant capital. 3

4 CASE STUDY 2 History of domestic violence though little corroborative evidence 2 years prior to separation H hits W s father and pleads guilty to GBH; W s father seeks compensation and H is ordered to pay 20,000 in damages; The only way that H can finance payment is with W s agreement to a remortgage on the FMH in joint names; Just over a year later H hits their 8 year old daughter and W asks him to leave; no charges brought against H for this. Only asset is FMH; conduct? 4

5 CURRENT THINKING Does this mean that the judge in chambers is to hear their mutual recriminations and go into petty squabbles for days on end, as he used to do in the old days...we do not think so Watchel v Watchel (1973) Fam 72 at 89 per Lord Denning MR The main reason why, on the whole, conduct has failed to make its mark in ancillary relief-despite being promoted higher up the list of s25 considerations by the Matrimonial and Family Proceedings Act 1984 ( MFPA 1984)-is that Judges find it an excruciating bore. A subsidiary reason is that it increases the length of hearings and that it is not thought to be a good thing in an era of cost consciousness. As a broad generalisation the position currently reached is that conduct is not going to excite the courts unless it has financial implications. This may be so where, for example : (a) A party has frittered away assets or needlessly given up work; (b) An injury inflicted by spouse A has reduced spouse B s earning capacity; or (c) Some non disclosure has been practised. Duckworth, latest edition 5

6 SAFE GROUND Personal misconduct (a)adultery and sexual assaults S v S (1982) Fam Law 183, Purchas J: H pleaded guilty to series of indecent assaults on daughters and lost his job as result; repugnant to justice not to take conduct into account, matrimonial home transferred to W in return for dismissal of periodical payments. Dixon v Dixon (1974) Fam Law 58, CA: Adultery with daughter -in -law shocking had to be taken into account, lump sum such that H could just about continue to earn a living. H v H (Financial Provision: Conduct) (1994) 2FLR 801, Thorpe J: Brutal assault on W leading to H s imprisonment and loss of job; Full transfer FMH and endowment policy, dismissal PP s. 6

7 (b) Violence Severe assaults may lead to a reduction or extinction of a share in the FMH, particularly if the injured party earning capacity is restricted: Jones v Jones (1976) Fam 8 H attacks W with knife 2 months after decree absolute severing tendons and disabling her from work; H s share of FMH extinguished. Armstrong v Armstrong (1974) 118 SJ 579: W fired shotgun through keyhole at H inflicting minor injuries; W placed on probation one quarter, not one third share for the wife. S v S (Non-Matrimonial Property: Conduct) (2007) 1FLR 1496, Burton J: Conduct should have about it a gasp factor rather than inducing a mere gulp 7

8 c) Unwifely deception and conduct Large and varied category all depends on the circumstances of the case: West v West (1978) Fam 1 Failure to affirm the marriage, W refused to move into FMH, stayed with her mother; Bateman v Bateman (1979) Fam 25 In ability to rise to demands of H s career abroad; Robinson v Robinson (No2) (1986) 1FLR Inability to give H respect and affection, award discounted; J (HD) v J (AM) (1980) 1 WLR 124 Continued harassment of H s new wife, relevant conduct on maintenance; Whiston v Whiston (1995) Fam 198, CA Philippine W failed to tell H already married no relief 8

9 Financial misconduct (a) Extravagant living/ reckless overspending Norris v Norris (2003) 1 FLR 1142, Bennett J: Norris add- back should be employed where there is a wanton element to the spending, overspend of 350, ,000 added back to H s assets; Thiry v Thiry (2014) EWHC 4046 (FAM) Singer J: H misappropriated 17m Euros of W s fund and lost a further 2.6m on failed hotel enterprise; H ordered to return the funds with interest; MAP v MFP (2015) Fam law 522 Moor J: No add back for H s spending on drugs and prostitutes, part of his flawed character but 271,000 restored to schedule as result of H dismissing W from company and W losing entrepreneurial relief on her shares. (b) Dishonesty and litigation conduct 9

10 FURTHER CONSIDERATIONS TO ADD TO THE DISCRETIONARY EXERCISE Obvious and gross per Lord Denning; context of the case. Gross in this context merely means of great importance in relation to the marriage, rather than needing to be gross in any moral sense; West v West (1977) 2 All ER 705, per Ormrod LJ Clearly, all cases are fact specific and the Higher Courts have resisted and continued to resist setting out even general guidance; See Wilson LJ as then was in K v L (2010) EWCA Civ 125 at Para 12: First she alleges that the proposed appeal is of general public importance in that there is at present an absence of and a need for judicial guidance about the extent to which in proceedings for ancillary relief a spouse s conduct should in effect override all other factors, including his needs, even in a case in which the other spouse has ample resources and can make some contribution to the service of his needs without economic pain. In this regard Miss Ball s industry has unearthed a call for general guidance on the proper treatment of misconduct in awards for ancillary relief made by Burton J during his too fleeting visit to the 10 Family Division in S v S ( Non Matrimonial Property : Conduct ( 2006 ) EWHC 2793 ( Fam) at (41). I cannot think,

11 however, that even if this Court had before it a full appeal on that point, it would feel able or willing to give the sort of general guidance for which Burton J there called and for which Miss Ball now asks. In relation to each set of facts the Court has to exercise its discretion and in my view this Court would be most unwise to be drawn into making a statement of principle about the sort of case in which, for example, conduct that would override all other factors, including that of need, even if (which I doubt) it was possible for the Court to formulate such a statement without any confidence. My views run parallel with those of Thorpe LJ in Clark v Clark (1999) 2 FLR 498 in which he said at 507H: Judicial estimations off fair outcome effecting gross misconduct should not be too refined or rarefied. What would the ordinary right thinking man or woman make of a judicial award of over 1 million to a wife guilty of this degree of misconduct? Indeed Thorpe J added at 509G: The statute defines the judicial task and I am against further elaboration or overlay. 11

12 THERE IS NO REQUIREMENT FOR THE CONDUCT TO HAVE ANY FINANCIAL IMPACT It is very clear both historically and currently that there is no requirement for the conduct complained of, in order to qualify, to have any financial impact: J (HD) v J (AM) (1980) 1All ER 156, Sheldon J stated: Furthermore, any conduct during those periods which interfered with the other party s life or standard of living (whether or not it affected the other party s finances) and which was so gross and obvious that to order the other party to support the party who s conduct was in question would be repugnant to justice was relevant in considering the application to vary an order. Later in Al Khatib v Masry (2002) EWHC 108 (Fam) Munby J as he then was, stated at Para 103: Referring to Rayden v Jackson Divorce and Family Matters...Mr Mostyn asserts and Mr Deacon does not dispute that conduct under 25(2) (g) of the 1973 Act does not have to have financial consequences for it to be taken into account. He submits that the husband s conduct in abducting the children and depriving them and the wife of the most basic human right, their mutual society, falls squarely within the class of case contemplated by Parliament when enacting the section. Wilson J s refusal to allow permission to appeal against Moylan J s decision in K v L (2010) EWCA Civ 125 where the conduct was of such magnitude without financial impact that it over rode any needs based argument on behalf of H. 12

13 THE IMPACT OF CONDUCT IF ESTABLISHED 1. Qualifying conduct will always be reflected in the outcome to a greater or lesser extent. 2. Its impact on any award will be highly fact dependent. 3. In some instances in it can result in outright dismissal of a claim (K v L above). 4. In the majority of cases the qualifying conduct may substantially reduce claims with the precise scale of the reduction depending on the circumstances of the case. 5. Qualifying conduct is also perfectly capable of overriding altogether the needs of the offending party. 6. Even in cases where there is a clear tension between qualifying conduct and compelling needs, whilst the court will require the wronged party to meet the offending party s needs those needs will be much less generously assessed. 13

14 Dornier Whittaker Zenith Chambers 14