When will Bad Behaviour be Punished by Divorce Courts?

Two divorce judges have provided seemingly incompatible answers to the question of when bad behaviour should be taken into account when a marriage breaks down. I clarify the situation, showing that there is no incompatibility and suggesting what this all means for future cases.

The cases in question are LP v MP and N v J. In both, a husband claims that they are the victim of domestic abuse and that because of this bad behaviour, their partner should be entitled to less money upon separation.

The Important Facts – Allegations of Domestic Abuse

In both cases, it is assumed by the judges that the following allegations made are true.

In LP v MP, the wife slapped, punched, scratched, threatened murder, bit the husband’s face, grabbed his testicles, and brandished a knife at him[1]. She emotionally abused and coerced the husband into a state of increasing isolation, agreeing less and less to their spending time with family and mutual friends[2]. She lied throughout the marriage to financially manipulate the husband, for example by getting him to fund studies for a degree in law that she said she was taking but was in fact not[3].

In N v J, one husband cheated on the other and lied about it. It appears to be their case that these lies amounted to emotional and/or psychological domestic abuse which caused the cuckolded husband to “need”, amongst other things, electroconvulsive therapy[4].

How did the Judges Respond to these Allegations of Domestic Abuse?

Robert Peel judged N v J, and restated the position that he has previously taken in such matters: for bad behaviour to impact the financial split in a divorce, the behaviour must be both very bad and shown to have had a negative financial impact[5].

He explains why – ‘…I do not find it easy to see how personal misconduct, with no adverse financial consequence, could readily be quantified in a principled manner. If the court increases the award because of misconduct, but in the absence of any identifiable financial impact, how is that sum to be quantified?’

Judge Peel found that the infidelity had caused no financial impact, and so no financial penalty was “awarded” against the cheating husband.

Nicholas Cusworth’s judgement of LP v MP came 16 months later, and in it he acknowledges the decision reached by Judge Peel[6]. Nevertheless, he decides that:

‘there is a real risk of unfairness to victims of violent or coercive controlling behaviour, if the lack of readily quantifiable financial loss prevents the courts from even considering the fairness of taking their assailant’s behaviour into account in determining the outcome of a financial remedy application. Such behaviour may well have hard-to-predict but potentially far-reaching consequences, in some cases for the victim’s prospects of achieving self-sufficiency, in others for a fair financial outcome in all of the circumstances. That does not mean that the fact of such behaviour will inevitably lead to a different award, but in the right case, it clearly should do.’[7]

Judge Cusworth decided that LP v MP to be one of those cases, and imposed a financial penalty. How did he address, then, Judge Peel’s concerns about the difficulty of calculating the appropriate penalty for bad behaviour?

He simply doesn’t bother to try. He is content to simply say ‘I am satisfied that a fair outcome for both parties is that 40% of the wife’s prima facie entitlement is deducted on account of her complete lack of contribution, the absence of which is rendered significantly more acute when considered through the glass of her deplorable conduct’.

In practice, this meant that the wife’s bad behaviour resulted in a financial penalty of £1,328,900 being made against her.

Legal Analysis – When will the Courts Punish Bad Behaviour?

In N v J, Judge Peel didn’t need to comment on whether there is a need to link domestic abuse to financial loss in order to financially penalise the abuser. This is because on the facts of N v J, he determines that no domestic abuse had taken place. He determines there to be no link between the actions of the cheating husband and any harm suffered by the cuckolded husband, deciding that:

‘…Having extra partnership encounters, and dishonestly concealing them, does not in and of itself constitute conduct for the purposes of financial remedies.

ii) It is very difficult to be satisfied that N’s infidelity and deceit caused N’s mental health to decline and necessitated the treatment for depression.’[8]

So, Judge Peel could have simply said that no domestic abuse was proven on the facts, and moved on. He notes that his comments regarding the need to evidence a link between behaviour and financial loss are a restatement of a test that he had already brought into existence in Tsvetkov v Khayrova[9]. However, in that case too, bad behaviour during the course of the marriage was not being considered – instead Judge Peel was concerned with assessing bad behaviour by one party during their litigation of their divorce[10]. And he himself acknowledges in N v J that it is important to distinguish bad conduct during the course of the marriage from bad conduct during the course of divorce proceedings[11].

In neither of Judge Peel’s cases, then, was it accepted that domestic abuse (or bad behaviour more broadly) had occurred during the marriage which had passed the threshold of seriousness necessary to warrant a financial penalty. And so, he did not need to comment on when bad conduct during the marriage should be penalised, if proven.

If I am right on this front, Judge Peel’s purported requirements are obiter. Obiter is a legal term which means that the comments do not create a precedent that future judges need to follow.

This would allow Judge Cusworth to decide LP v MP as he does, by punishing the wife for her bad conduct even though there is no proven and specific financial loss, without being accused of going against the decision in N v J. Still, the fact that he does without seeking to explain, as I do, how the case of LP v MP can be distinguished on its facts from that of N v J, will create confusion and uncertainty in future matters.

Judge Peel’s concerns about how we calculate financial penalties for bad conduct are valid and important. Judge Cusworth provides no indication as to how he arrived at the decision to penalise the wife to the tune of £1,328,900.

A friend of mine who is a corporate lawyer once said that family law is about as intellectually rigorous as colouring by numbers. When one reads decisions like this, that get signed off on by the most esteemed names in family law, it sometimes feels hard to disagree.

And it remains unclear exactly when bad behaviour during a marriage will be serious enough to warrant a financial penalty upon separation.

Two decades ago in the case of S v S, Judge Burton decided that domestic abuser did not deserve to be financially penalised because although their abuse made him “gulp”, it did not make him “gasp”[12]. This gave birth to what has clumsily and informally become known as the gulp/gasp test amongst family lawyers, applied now to bad behaviour more generally. If you beat your wife or set fire to the house in a way that only makes the judge gulp, it’s not going to hurt your pockets.

It is likely that these recent decisions by Judges Peel and Cusworth have changed nothing. Perhaps the most that can be said is that Judge Peel almost confused matters with his obiter comments, has been rightfully ignored, and that subsequently Judge Cusworth has presided over a case that made him gasp.

No doubt most people would agree with him – the evils of the wife in LP v MP will be obviously identified as such by most people. But what about less exciting cases of betrayal, abandonment or deceit?

In N v J, we see Judge Peel parrot the widely accepted view that cheating and lying about it does not ‘constitute [bad] conduct for the purposes of financial remedies [proceedings]’[13]. But why can it not? Imagine if you will, that you are hard at work whilst your spouse is banging Bruce in your bed. You were working on building the marriage up, and your partner? He/she was actively destroying it. I have yet to meet a client who has not been outraged to find out that family lawyers and judges alike seem universally aligned in their view that this is simply not very serious.

Even if judges start to more readily punish exciting acts of domestic abuse, they will no doubt continue to view conduct like infidelity, gambling and drug use as not warranting any imposition of a financial penalty, even if this conduct clearly causes the marriage to break down, and even if such actions are generally regarded as very bad by the general public. It will probably continue to take a lot to make the judge gasp.

So, is there anything that members of the public can do to make sure that their partners are held to a more sensible, universally held moral code? I think there is. As far as I am aware, I’m the only lawyer in the UK advocating for marrying/married couples to enter into prenup and postnup agreements which set out what they personally consider to be seriously bad behaviour, worthy of punishment in the event that they get a divorce. Why make this a decision for the court in the first place, if you can decide for yourself?

Are such agreements enforceable? Nobody knows. In 2010, prenups and postnups became potentially enforceable in England and Wales[14]. However, not a single agreement brought before the courts fore review since then has included a clause penalising bad behaviour.

But the courts should uphold them. The underlying rationale of Radmacher v Granatino was to empower personal autonomy amongst members of the public. Why should properly advised, intelligent adults not be able to agree that they should be punished in a certain way if they are found guilty of certain bad behaviour?

Although we do not know if conduct clauses in prenups and postnups will be enforced, there is no harm in inserting them and asserting your right to be governed by the moral code of the people, rather than that of out-of-touch family law practitioners.

What are other Lawyers Saying?

A lot of lawyers are shying away from taking a position in the apparent debate between Judge Peel and Judge Cusworth, with many firms observing simply that the stances taken by them in N v J and LP v MP respectively are different.

Gumersalls, lawyers for the husband in LP v MP, have made no public comment. But they did recently explain how Michael Jackson won an intellectual property dispute by singing in court[15].
Withers, lawyers for the Applicant husband in N v J, continue to frame lying about infidelity as amounting to psychological or emotional domestic abuse[16]. This is not helpful. I’ll be the first to agree that cheating and lying are serious and wrong and worthy of punishment, but conflating these behaviours with domestic abuse muddies the waters and does a disservice to abuse victims.
Kingsley Napley state that ‘in [LP v MP], Mr Justice Cusworth took into account the wife’s “deplorable conduct” towards her husband…and found that this conduct had had a financial impact’[17]. This is a misreading of the matter – Judge Cusworth at no point attributes his penalty for bad behaviour to any financial consequences that may have arisen from said behaviour.
International Family Law Group observe that ‘we currently have two High Court judges seemingly with different views. The step towards the court potentially having greater scope to take conduct into account to be welcomed. But it comes at the cost, at least for now, of greater uncertainty of outcome’[18]. I disagree. As far as I am aware, I am the only lawyer to highlight that Judge Peels’ broader comments in N v J seem to be obiter, and therefore the only one to observe that the decisions of the two judges are not necessarily incompatible.

I’m Ricky Hepburn. On this front and many others, I unravel the web of nonsense created by family lawyers and judges, in order to help you achieve results that are good and fair.

I tell it like it is, and see things for what they are.

Are you in a marriage? Perhaps you would like to create an agreement which protects you in the event that your spouse acts badly. Or perhaps they have already acted badly, and you need help ensuring that their conduct is duly punished during the divorce. Either way, I’m your guy – get in touch.