Practice Area: Divorce

Disputes between separated couples as to how their children should be provided for can, in the absence of compromise, sadly reach epic proportions. That was certainly so in one extraordinary case in which a couple spent over £5 million between them litigating over the future of their son.

The couple, who were not formally married, lived a remarkably lavish lifestyle during their long relationship. They viewed the birth of their longed-for child, following IVF treatment, as a miracle. Their separation, however, raised the curtain on relentless litigation concerning the boy. Their expenditure on legal costs was estimated to amount to more than £60,000 for each month of his young life.

The dispute entered a new chapter when the mother sought a carer’s allowance and financial provision for the child from the immensely wealthy father. Ruling on the matter, the High Court found that the litigation arose almost entirely from the father’s relentless, unsympathetic and oppressive conduct. Whilst clearly having exceptional business acumen, he had shown almost no emotional intelligence.

The Court noted that the child was apparently thriving. However, if he were to learn in later life that his parents had – at such completely absurd cost – spent their entire time arguing about him, he would be appalled. Such a discovery might prompt him to simply walk away from both of them when he was old enough to do so.

The father was, amongst other things, directed to provide for his child by paying the mother £125,000 a year and to arrange the purchase of a property for her and their son to live in at a price of up to £4 million. Urging the former couple to draw a line under the litigation and reach some sort of rapprochement, the Court emphasised that their child’s best hope of a secure future lay in having two loving parents.

Only those with the mental capacity to make important decisions for themselves can consent to marriage – or divorce. However, as a High Court ruling made plain, it is in no one’s best interests for the law to maintain a marriage that has become no more than an empty husk.

The case involved a couple whose marriage was already under considerable strain when the husband sustained a severe brain injury. Prolonged and expensive divorce proceedings followed but, more than 15 years on, they remained married. They had barely seen each other during much of that period.

With the support of a close friend, the husband sought a decree nisi. His petition was initially resisted by the wife, who was concerned that the dissolution of the marriage would be financially disadvantageous to her and, particularly, to the couple’s adult children. However, she withdrew her opposition at the end of the court hearing.

Ruling on the matter, the Court had no doubt that the husband lacked capacity to consent to a divorce. Formerly a charismatic and energetic man, his condition had sadly deteriorated to the point where even the most rudimentary decisions were beyond him. He lived a largely reclusive life and there had been little, if any, contact between him and the wife for well over a decade.

Given such a long estrangement, the Court observed that the core features of what constitutes a marriage had evaporated. There was something inevitably corrosive of the status and importance of the institution of marriage in preserving a legal framework which, for both of them, had become a mere empty vessel.

The prevailing evidence indicated that, at a time when he still had decision-making capacity, the husband regarded the marriage as having irretrievably broken down. The wife, too, had come to regard the marriage as at an end. To maintain the status quo in those circumstances would risk demeaning all involved. Reaching the very clear conclusion that a divorce was in the husband’s best interests, the Court found that a decree nisi was a necessary step that had been avoided for far too long.

In cases where even a succession of stiff prison sentences has failed to bring about compliance with court orders, what is a judge to do? A family judge faced exactly that quandary in the case of a father who defiantly refused to cooperate in arranging the return of his two daughters from Libya to England.

As long ago as 2015, the father flew with his three children to Tunisia on an agreed visit to see their paternal grandmother. Instead of returning to this country, however, he took the children to Libya, the country of his birth. He subsequently returned to England with his son, but his daughters had, so far as was known, remained in Libya ever since.

Although one of the daughters had attained adulthood – the other was approaching her teens – neither of them was permitted to leave Libya without their father’s formal consent. At their mother’s behest, various court orders were made requiring him, amongst other things, to give such consent and to use his best endeavours to procure their return to England.

His persistent refusal to comply with those orders resulted in findings of contempt of court being made against him on four separate occasions. He received prison sentences totalling five years. His continued defiance, however, did not deter the mother from applying to have him committed to prison yet again.

His lawyers realistically submitted no mitigation on his behalf. They argued, however, that a further prison sentence would have no coercive effect on him in that he was determined to do nothing to help procure his daughters’ return to England. Even if granted further time for compliance, he would not alter his stance.

Had the father been prosecuted in a criminal court, his lawyers pointed out that the maximum sentence for child abduction is seven years’ imprisonment. After a one-third deduction for a guilty plea, the maximum would be 56 months. He had already been sentenced to more than that for his successive acts of civil contempt.

Ruling on the matter, the judge noted that the maximum sentence for contempt of court is two years. However, it was possible for successive breaches of the same court orders to result in successive findings of contempt and successive terms of imprisonment which, in aggregate, exceeded two years.

In sentencing the father to a further 12-month jail term, the judge refused to overlook his wilful defiance and the appalling consequences of his conduct. Even if the sentence had no coercive effect, it was still an appropriate punishment. There was no basis for suspending the term in that he had given not an ounce of indication that that would achieve anything. The judge expressed the hope that his separation from his son during his period behind bars might prompt him to think again.

Until no-fault divorce comes into being in the UK, the current fault-based divorce system requires one party to cite a ground for divorce; in other words, they must provide the court with a reason why the relationship has irretrievably broken down. The petitioner (person applying for the divorce) must provide evidence to support their chosen ground, and the respondent (the petitioner’s spouse) can either agree or disagree.

Citing unreasonable behaviour, no matter how bad the behaviour appears to be in the petitioner’s opinion, is purely the means by which the court will decide whether or not to dissolve the marriage and the severity of the behaviour will bear little or no relevance as to how the divorce is likely to proceed through the court system. However, one way in which it may affect a divorce is in relation to costs.

If unreasonable behaviour (or desertion, or adultery) is cited as the ground for divorce, then the respondent may become liable for at least some of the petitioner’s costs.

Unreasonable behaviour as grounds for divorce

One of the main criticisms of the current divorce process is that unless you can state one of the other grounds for divorce on your petition then you will have to provide the court with several examples of your spouse’s bad or unreasonable behaviour. You must include details of the behaviour that has adversely affected the marriage, dates of when it occurred, and how it made you feel. You will be expected to provide enough specific information to satisfy the court that you cannot reasonably be expected to continue living with your spouse.

The evidence provided to the court is also sent to the respondent who must either agree that the evidence is the reason for the irretrievable breakdown, and that they therefore agree to the divorce, or, If they don’t agree, they may wish to contest the divorce. And this is where the current adversarial system can get very difficult and costly.

Divorce court controversy in the 21st century

In the case of Owens v Owens, which has proved to be a persuasive argument for the introduction of no-fault divorce in England and Wales, Mrs Owens applied for a divorce citing that her husband’s behaviour was unreasonable. Mr Owens disagreed and defended the divorce petition. The court did not agree with Mrs Owens that her evidence was proof of irretrievable breakdown and the petition was dismissed. Mrs Owens appealed this decision and this was also dismissed.

Despite the spiralling costs, Mrs Owens maintained her position that she was trapped in a loveless and unhappy marriage and argued that this should be reason enough to be able to obtain a divorce. She took her case to the Supreme Court and while the judges stated in their judgement that the case was troubling, they agreed with the initial ruling that Mrs Owens had not sufficiently proved her argument of unreasonable behaviour.

Following Owens v Owens, a number of organisations and interested parties, including many divorce solicitors, suggested that the current adversarial divorce system is out of date and out of touch with a society which strongly believes in autonomy when dealing with personal feelings. Many believed that all the ruling would do would be to make sure that divorce solicitors urged their clients to use robust accusations of bad behaviour to ensure success. And this, in turn, will only serve to fuel the more adversarial and contentious nature of English and Welsh divorce courts.

Bad behaviour and financial settlements

Under Section 25 of the Matrimonial Causes Act 1973, there is no legal concept to provide financial compensation for bad marital behaviour; so the amount of unhappiness endured in a marriage as a result of a former spouse’s behaviour will not be taken into consideration by the court during a divorce financial settlement claim.

However, when dividing matrimonial wealth the court will seek to make the fairest settlement possible determined by the individual circumstances of the case and if bad conduct has in some way affected the family finances (or the finances as they have been presented to the court) this may be considered in a number of other ways. These broadly fall into three categories:

Financial conduct in relation to the marriage
If the court can quantify how bad behaviour has affected the matrimonial pot, for instance in terms of reckless spending, gambling, or needlessly stopping working, then it may be able to apply this in the form of ‘adding back’ a sum to reflect the amount taken from the pot.

However, the court may not be able to add back in certain cases, for instance if it can be proved that the financial misconduct was not ‘wanton’ or deliberate but was the result of a medical condition or an addiction.

If fraudulent behaviour has damaged the matrimonial pot, the court may be able to award the wronged party a sum as part of the financial settlement to reimburse any financial loss.

Personal conduct and the financial settlement
In a financial settlement, the impact of bad personal behaviour is complex and, as seen in Owens v Owens, what constitutes bad behaviour is fundamentally subjective. It must be remembered that the family court is not punitive and is not able to stray into the realms of providing criminal judgement on behaviour within a marriage.

Where harmful personal behaviour, such as domestic violence for example, has caused a grossly unfair situation (perhaps injury has rendered one party unable to work or caused lasting psychological damage) and is so serious that it would be unfair not to factor it in to any settlement, the court may seek to distribute wealth so as to address the financial loss.

Unfortunately, there is no comprehensive test to determine when bad conduct will be given weight within a financial settlement and the courts are guided by a relatively small number of cases in which the type of conduct considered was extreme and “both gross and obvious”.

Litigation Misconduct
During divorce proceedings, both parties will be expected to abide by court rules and adhere to all requirements to enable divorce proceedings to run smoothly.

For example, both parties will be expected to provide full disclosure of their financial situations. If a party is found to be hiding assets or has disposed of them in order to prevent the other party from benefitting, the court can impose a costs order and, in very serious breaches, a fine and custodial sentence for contempt of court.

Similarly, if delay tactics are used or false evidence is presented to the court this could also see the parties ruled in contempt.

Using children as a bargaining tool

It is not uncommon to hear of one parent deciding to withhold child contact from the other party as a misguided form of punishment for bad behaviour. However, if the parties are subject to a child arrangements order whereby contact has been agreed, the party withholding contact could be seen to be in contempt of court. This could result in legal action against them.

Nevertheless, if any party believes that the bad behaviour of the other parent is putting children at risk of harm, then it is best to seek legal advice as soon as possible so that the correct authorities can be notified and the proper steps taken to ensure the children’s safety.

While it is a fairly common and sad fact of family law that children are used by some parties as bargaining chips in divorce, the court has no power to factor this behaviour into a financial settlement and the issues of child arrangements orders, child maintenance and parental responsibility are separate issues.

Divorce solicitors for financial settlement and family law matters

For help or advice on matters discussed in this article please call 020 8464 4242 for our Bromley team, 01732 457575 for Sevenoaks, 020 7481 2422 for central London or 01372 750100 for our Surrey team.

Alternatively email your enquiry to enquiries@wellerslawgroup.com .  We offer a fixed fee, no obligation one-hour interview so that we may provide you with initial advice and suggest the options for your next course of action.

Any good lawyer will tell you that it is far better for divorcing couples to agree how their assets should be divided, rather than fighting it out in court. A Court of Appeal case showed, however, that, where personal animosity persists, it is only too easy for the terms of such agreements to themselves become the subject of dispute.

The case concerned a very wealthy couple who, following highly acrimonious divorce proceedings, resolved to settle their differences. They signed a consent order which it was hoped would lead to a clean break. Amongst other things, the order required the husband to make a series of seven-figure lump sum payments to the wife. It also provided that the former matrimonial home should be sold ‘forthwith’ and the proceeds divided equally between them.

It was envisaged that an immediate sale of the property would be achieved at a price in excess of £7 million. In the event, however, the high-end property market stalled following the outcome of the 2016 Brexit referendum. The wife remained living in the house for about two and a half years before a buyer could be found. The eventual sale price was a disappointing £5.9 million.

Prior to the sale, the husband – who it was agreed was the property’s sole legal and beneficial owner – served a notice on the wife, requiring her to either vacate the house within four weeks or to pay £5,000 a week in rent. After she refused to take either of those courses, he launched possession proceedings against her. He also sought £600,000 in damages for alleged trespass.

Following a preliminary hearing, a judge found that the wife occupied the house as a mere gratuitous licensee and that the husband was entitled to give her reasonable notice to quit. On expiry of such notice, the wife became a trespasser liable to pay damages. Those rulings were, however, subsequently overturned after the wife appealed to a more senior judge.

Dismissing the husband’s challenge to that outcome, the Court noted that, when they signed the consent order, both husband and wife were confident that the desirable property would sell quickly. With no significant delay in the sale being envisaged, the order made no specific provision in relation to the wife’s occupation of the property pending sale.

Notwithstanding the order’s silence on that point, the Court found that, on its true interpretation, its meaning and effect was to permit the wife to occupy the property until the date of its sale. She was in the interim required to pay outgoings on the property, but was under no obligation to pay occupational rent.

Describing the case as a somewhat sorry cautionary tale, the Court noted that the proper interpretation of the consent order was, in the end, rather obvious. Personal animosity between the former couple had, however, driven them to make use of their considerable resources to litigate the matter through two appeals.

Working out the financial consequences of divorce takes time and that is why judges have the power to make interim maintenance awards to bridge the gap. In an important ruling, the Court of Appeal gave guidance on how that power should be exercised to provide for reasonable financial support and relieve hardship.

The case concerned a couple in their 40s who separated after 10 years of marriage. Pending a full financial remedies hearing, the wife sought interim maintenance under Section 22 of the Matrimonial Causes Act 1973. A deputy district judge ordered the husband to pay her £2,850 a month. After the husband appealed, however, that order was overturned by a more senior judge.

In upholding the wife’s challenge to that outcome, the Court noted that the case raised an important point of principle. The power to award interim maintenance is an extremely valuable one in that it enables judges to meet the income needs of a spouse or children at a time when they might be in real need of financial support following separation and the commencement of proceedings.

Restoring the district judge’s order, the Court noted that there was nothing unusually complex about the wife’s application, which did not require extensive analysis. No further detail was required in the budget she put forward and the more senior judge had taken an overly restrictive approach to what constituted her immediate expenditure needs.

The district judge properly analysed the budgets submitted by each side and was entitled to conclude that the husband had sufficient resources to meet both their reasonable needs. As part of the interim award, she was also entitled to order the husband to pay the school fees of the younger of the family’s two children. Overall, she reached a fair decision as to what level of interim maintenance would be reasonable and the more senior judge had no proper basis for interfering with her decision.