She did what? Conduct and Financial Claims on Divorce

By Emma Nash

How you behave when you are separating or getting divorced can have a significant impact on the outcome of that process. It is not easy to be at your best when you are angry and upset and perhaps still trying to wrap your head around the fact that the life you planned for is no more. However, taking those negative feelings into negotiations can make the process more difficult and drawn out. It could also cost you more in legal fees if you and your ex are unable to resolve matters and you need to ask the Family Court to step in. There are ways to avoid this and to help parties reach a swift and amicable agreement. These include mediation, the assistance of a family therapist or a divorce coach, or if you still cannot agree matters, then you can use a family arbitrator to make a final decision for you. The earlier these alternatives are considered then the better chance you have of avoiding the stress, cost and uncertainty of a contested final hearing.

What about how someone behaved during the marriage? It can be tempting to catalogue every fault and grievance that your ex has inflicted on you and to ask for it to be taken into account when deciding what the final financial outcome should be. This approach, however, would lead to the Family Courts being used as the arbiter of why the relationship failed and who was most to blame. Such litigation would achieve nothing except to prolong the conflict between the parties do further damage to the family. That is not the purpose of the Family Court and those hoping for such assessment and vindication will quickly discover that such complaints are neither tolerated nor relevant. That is, unless the conduct of their ex is such that it would be unfair to disregard it. That is an extremely high threshold to meet and cases which feature successful conduct arguments are infrequent.

A case heard earlier this year, however, did find that one party's conduct within the marriage was relevant when deciding the financial outcome at the end of the marriage. This is the case of FRB v DCA [No.2][2020] EWHC 754. It involved an extremely wealthy couple and there were many issues in dispute between them that Mr Justice Cohen was asked to resolve at a final hearing. The parties had married in 2003 and separated in 2018. After the separated the husband had reason to suspect that the only child of the family, an 8-year-old son, might not be his. DNA tests were carried out which revealed that this was true, and the wife conceded that she had had an affair at around the time the child was conceived.

The relevant conduct in this case was not that the wife had been unfaithful (the Judge found that this was entirely irrelevant) but that she had, throughout the remainder of the marriage, allowed the husband to believe he was the child's father. Whilst Cohen J accepted that the wife may have been anxious to believe that the husband was the father, it was incredible that the thought that he might not be had never crossed her mind. Also of relevance was the effect that her silence had on the husband when he discovered the truth which the Judge found to be 'devastating'. The Judge therefore concluded that it would be inequitable to disregard the wife's conduct when making his judgment.

When a mother is knowingly dishonest about the paternity of her child, this is called 'paternity fraud'. The ruling in the above case suggests that paternity fraud will be a relevant consideration in financial proceedings. Each case, however, will turn on its own facts and the Judge in the above case did have to consider the circumstances in which the fraud took place. It is conceivable that circumstances could exist that might mitigate such dishonesty. For example, if the husband (or the father) were abusive or if the mother came from an extremely conservative background and she genuinely feared for her safety if she were to reveal the truth. Whatever the circumstances, the consequences of paternity fraud can be devastating not just for the father but for the child and careful consideration must be given to how and when the child is told about his true parentage and what support that child, and the rest of the family, may need as a result. There could also be further consequences for the mother outside of divorce proceedings as this type of fraud could give rise to a civil claim or even criminal prosecution. Again, this will depend on the circumstances of each case.

How someone behaves in a marriage is unlikely to be relevant in most cases. However, and as set out at the beginning of this article, how parties behaves at the end of the relationship, and specifically during negotiations, could impact how quickly a matter is resolved and how much is spent in legal fees to get there.

Emma Nash is a Partner in our Family Law Department, specialising in all aspects of family law, having particular expertise in matters with an international element. Emma has worked previously on complex financial disputes, private children cases, cases involving allegations of domestic abuse, paternity disputes, and paternity fraud.
Contact Emma at Emma@fletcherday.co.uk.

 

11 December, 2020
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