As family lawyers we are often asked by clients, how does their ex-civil partner/spouse's behaviour affect the financial proceedings, and what will the consequences of their actions be during the proceedings? Their view is of course that the other party should be punished in some way. The allegations of behaviour related issues, historically came from the divorce, where fault based petitions were issued at the outset of the proceedings. There were often allegations within a divorce, of domestic violence and coercive control, financial mis-management or misconduct, infidelity, drug and alcohol abuse.
The Matrimonial Causes Act 1973 s25 (2)(g) clarifies that conduct is one of the criteria that the court take into consideration, but only where its impact is financially measurable and the court decides it would be inequitable to disregard it. However, the courts have taken a strict view of the issue of conduct, where it has become the exception, not the rule.
The recent case of OG -v- AG (2020) stated the different ways in which conduct may be raised as follows:
The question is will 'conduct' ever trump the 'need' of the party who has behaved badly? Maybe, but it is anticipated rarely. Their need to be rehoused will still take priority over them being punished for any behaviour.
It is worth noting that behaviour is very specific, and should be raised at the outset of the proceedings being properly pleaded, it cannot be raised half way through the process and directions should be set down at the first appointment to address the allegations raised. The person alleging conduct carries the burden of proving it. Failure to raise conduct at the outset can lead to cost implications against the party raising it. There may also be cost implications for the person raising it if they do not reach the very high bar raised in respect of conduct. Ironically if the very high bar is not reached this may lead to allegations of litigation conduct being raised against the 'wronged' party and so it is imperative to take a view at the outset and make sure you are very sure about why you are pleading conduct, and whether you should in fact go down this route.
The rare occasions where conduct is more likely to be taken in to consideration, is when one parties' behaviour or actions has affected the other so severely that it has impacted their ability to work. This must still be clearly pleaded and evidenced.