We are often asked whether a spouse’s bad behaviour during the marriage will be relevant when dividing up the matrimonial assets, following a separation. Under the Matrimonial Causes Act 1973, the court is required to consider the conduct of each of the parties but only if that conduct is such that it would be inequitable to disregard it. In interpreting this piece of law, the court has set a very high bar for poor behaviour that will be relevant and impactful upon the division of the assets. This is often disappointing for people when they expect that their spouse’s poor behaviour and the reasons for the end of their marriage should influence the outcome of the financial proceedings. However, it rarely does.
Cases where conduct has been relevant are extreme. These have included an attempted murder of the spouse and abuse of the children. The relevant cases are often where there are extreme physical abuse, often with criminal convictions.
However, in a recent case of Seales v Seales [2023] it was found that conduct was relevant. This was another extreme case whereby the husband was in prison for murder. It was also found that he perpetrated coercive control and other domestic abuse against his wife, which had a profound impact upon her health and well-being.
Within this case it was said that there is a high threshold for conduct but that reference to behaviour having to have a “gasp factor” overstated the position intended by parliament. It was said that there is a clear obligation on the court to recognise cases of coercive control because it would be inequitable to disregard it. It was also said that this is a gender issue and to exclude genuine cases of coercive control from amounting to conduct relevant in financial proceedings would fail to do justice to women, as it was said that women are disproportionately the victims of such conduct.
The threshold of relevant conduct having to have the “gasp factor” was proposed by Mr Mostyn QC in the case of S v S [2007] (1 FLR 1496). This was said to be the test for the court to distinguish between conduct which was inequitable to disregard and therefore relevant, and the frequent fighting and quarrelling that happens in an unhappy marriage.
It was found in this case where there were 22 incidents of conflict and domestic abuse, over a six-year period that it had just a “gulp factor” not a “gasp factor”. Therefore, the conduct was not inequitable to disregard and it was not taken into account. This case was heard 17 years ago. It is quite possible that Mrs S has since found that her experience in the marriage has had a significant impact upon her future. Incidents of extensive domestic abuse have an impact upon the victim’s psychological well-being and this in turn can be damaging to a person’s earning capacity and ability to work. It is therefore positive to hear that this “gasp factor” test is possibly outdated. It is no longer the case that there is a scale of domestic abuse with serious physical violence at the extreme end and emotional abuse at the lesser end. The approach of the Family Court has developed in taking all instances of control and coercion seriously whether they include physical instances or not.
It will be interesting to see over the coming years whether the approach of the court to conduct, especially in instances of controlling and coercive behaviour changes. A multidisciplinary working party is being formed to look at the treatment of economic abuse within financial remedy cases. This party will later consider whether and if so how, other forms of coercive control should be addressed in financial remedy proceedings when determining how the assets of separating married couples should be divided.
If you require any advice on the issues addressed within this article, please do contact E J Coombs solicitors: 01883 343 460.
