In the case of N v J [2024] EWFC 184 Peel J builds on existing case law in relation to conduct as a factor in Financial Remedy proceedings, and contemplates specifically the circumstances in which domestic abuse is a factor under Matrimonial Causes Act 1973 Section 25(g). I am expecting this case to be influential in relation to how conduct cases are put forward by lawyers, as well as how judges will apply the law.
In considering whether domestic abuse is a factor that might influence finances, parties must firstly prove the abuse. It sounds obvious, but an allegation is not enough, conduct must be proved to the civil standard. Parties must establish that it meets the high threshold for conduct to influence the outcome of finances; this is a reiteration of existing law. The courts do not want to see conduct being pleaded routinely. A party must also prove the link between the act or omission of abuse and a negative financial impact.
The case starts with a stark warning to lawyers: plead your case. The courts do not want parties hedging their bets by putting into Section 4.4 of Form E that they are “reserving their position”. Expect that phrase to vanish rapidly because Peel J described it as “forensically dishonest”. If there is behaviour bad enough to amount to Section 25(g) conduct, then you know it; so say so.
Lawyers need to be specific and if the conduct does arise after Form E, then it needs to be brought to the attention of the court as soon as possible, possibly in a directions appointment.
There are four types of conduct that a court will be concerned with.
- Personal conduct towards the other parties such as serious assaults, or very serious coercive and controlling behaviour and financial abuse.
- Dissipating assets, this is the add back argument that sometimes arises, and the dissipation of assets would also need to be very serious to justify troubling the courts with it.
- Litigation conduct; it would generally arise outside Form E, such as a failure to comply with directions, because a party can already be penalised heavily in costs, but it is not impossible for litigation conduct itself to amount to a Section 25(g) factor. Lawyers need to be really alert to the fact that the court will not want to penalise a party twice.
- Failure to disclose. This might lead to an adverse inference that a party has more assets than stated. There are lots of cases out there; it will normally need to be something really significant to be treated as conduct.
In this case the pleaded conduct was that J paying for sexual encounters, and denying the same, had exacerbated N’s mental health issues. The judge therefore asked himself a question: if I accept everything N says, would it amount to conduct? He concluded that it would not, therefore stopping that issue in its tracks. It is worth bearing in mind that this was not a Final Hearing, but a Case Management Hearing.
Peel J concluded as follows:
- Changes to expand the definitions of domestic abuse (Domestic Abuse Act 2021) do not change Section 25(g).
- Statute does not require the conduct to cause a financial impact, but a case where conduct is successfully pleased without it, would be “vanishingly rare”.
- Case law authority suggests there must be financial impact.
- The conduct must be material to the case.
- The case must deal with the issue proportionally.
This case is interesting because a judge asked at an early stage “would the alleged conduct be relevant”. In concluding not, the judge spared the parties a disputed hearing on this matter that would have been both expensive and divisive. We can expect this case to be influential as courts consider not only the merits of case but also general case management.
