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Conduct as a factor in dealing with financial cases

Clients often visit solicitors in a state of hurt, anger or confusion and frequently the subject of that emotion is their spouse. At these times the question is asked "will the court take his/her behaviour into account?" Clients are so upset that they cannot believe that a court would not take conduct into account when dealing with financial issues. They feel that some financial punishment is due to right the wrong.


The approach of the law to this question has been quite well settled for a number of years. There used to be an old test that the conduct had to be "obvious and gross" to be taken into account but that test has been modified and the Matrimonial Causes Act 1973 now quite specifically sets out that conduct is not to be taken into account unless it is "inequitable to disregard". This has been separately interpreted to mean "exceptional".


Almost all of the cases in which the court has taken conduct into account have involved some sort of criminal behaviour, usually involving violence or sexual offences (or both) towards either the spouse or other members of the family. The major case of S v S (Non-matrimonial property: Conduct) in 2006 contains a summary by the judge of the most significant type of conduct previously found by the courts to have met the test and even today still acts as a useful guide.


Examples of conduct falling short of such serious behaviour are likely not to be taken into account and clients may even find that a failed attempt to pursue conduct may in itself be "litigation conduct" justifying an order for costs to mark the court's disapproval of the attempt.


For advice regarding any aspect of family law, please contact our Head of Family Ian Stirzaker on 01905 723561 or e-mail





Added: 14 Jan 2016 10:37

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