This judgment by DJ Dodsworth examines the legal principles relevant to raising conduct arguments in financial remedy proceedings.

Background

A (aged 52) and R (aged 56) met in 1993, they began cohabiting in 1996. They subsequently married in 2004. A previously worked within the NHS but took early retirement on medical grounds. She alleges R’s conduct was, at least, a contributory factor to her early retirement. H is also employed within the NHS.

Within her Form E, A raised conduct as an issue for the court’s consideration. The allegations that A raised relate to domestic abuse that, if true, amount to a pattern of coercive and controlling behaviour perpetuated by R. A’s case was that this contributed to the aetiology of A's (redacted) condition, to her recurrent relapses and maintenance of her illness. R's coercive controlling and volatile behaviour did not provide a supportive environment to enable A to achieve sufficient recovery to enable her to return to work.

A was directed to file points of claim accompanied by a witness statement, and R was to then file a witness statement in response. A was also directed to file a further witness statement in response to R’s. The matter was thereafter listed before DJ Dodsworth for a conduct case management hearing on 26 July 2024 with the key issue being whether to permit A’s conduct claim to continue to trial. A sought to include conduct as an issue to be further considered at trial, whereas R denies all the allegations made and sought to exclude the conduct claim from further consideration.

The non-pension assets in the case total approximately £2.12 million, and the parties’ pension information at this stage was not available. At the First Hearing A’s costs were £15,004 and R’s were £21,517. By the hearing before DJ Dodsworth they had more than doubled and were £55,726 and £59,212 respectively.

A’s allegations against R were that he:

• Undermined and belittled A’s career.
• Limited her social activities and those of the children.
• Took steps to alienate the children including involving them in the financial settlement.
• Invaded A's privacy, using cameras to spy on her, monitored her phone, email and text messages.
• Accessed privileged information passing between A and her solicitor and also deleted evidence from her phone.
• Alleged that A lacked capacity and that he had thought of killing himself and A.
• Removed A's ill health retirement pension lump sum and critical illness money from the parties’ joint account. He then went on to encash A's Hargreaves and Lansdown shares without her consent.

Summary of the law

The interplay between domestic abuse and conduct in financial remedy proceedings has recently been considered in the matter of N v J [2024] EWFC 184. The question is whether the domestic abuse alleged in this case is potentially a relevant factor in financial remedies litigation, in circumstances where ‘conduct’ is, in accordance with both statute and case law, only to be taken into account if it is of a highly exceptional nature. Moreover, per Tsvetkov v Khayrova [2023] EWFC 130, there must be an identifiable (even if not always easily measurable) negative financial impact upon the parties which has been generated by the alleged wrongdoing. If established, the court will go on to consider how the misconduct, and its financial consequences, should impact upon the outcome of the financial remedies proceedings, undertaking the familiar s 25 exercise which requires balancing all the relevant factors.

Conclusion

DJ Dodsworth determined that A’s allegations of conduct were to be excluded from consideration at trial as:

1. The points of claim as raised, even taking them at their highest, are not of such exceptionality to meet the conduct threshold.
2. A accepted that the conduct as alleged is not the only cause of her ill-health or failure to make a sufficient recovery such that she could resume her career; it is, at its highest, a contributory factor.
3. This conduct does not ‘jump off the page’ as a factor for consideration in financial remedy proceedings, even if true.
4. The court is able to reach a fair distribution of the assets by weighing all the relevant factors and will largely rely on the sharing principles and needs (including A’s health generated requirements), thus there being no need to take into account any conduct.
5. It is disproportionate to litigate conduct. There have already been considerable costs and the court is under a duty to manage cases so they take up the proper proportion of scarce court time.

DJ Dodsworth concludes that he considered this is a case in which A sought to rely on conduct to seek validation and justification of her own sense of ill-treatment, which is not the function of the court.

See also:

• Financial Remedies Journal: N v J: the Last Word on Domestic Abuse as Conduct?
• Financial Remedies Journal: Excluding s 25(2)(g) ‘Conduct’ from Consideration at an Interim Stage – Strike-Out or Summary Judgment by Another Name?