‘Conduct’ and a 1984 ‘development’
Almost at the end of the list of factors the court must take into account when it is being asked to make a financial provision order is ‘(g) the conduct of each of the parties, if that conduct is such that it would in the opinion of the court be inequitable to disregard it’ (Matrimonial Causes Act 1973 (MCA 1973), s 25(2)(g)). Is it time yet to review the meaning of this provision in the context of financial relief proceedings and in the light of a more modern view of what is meant by ‘conduct’ and inter-spousal ‘behaviour’?
It is hard-wired into family lawyers that the courts do not make financial orders based on ‘conduct’. It was – in effect – a basis for divorce proceeding under MCA 1973, s 1(2)(b); but only very rarely a basis not for a financial order. Most of the case law tells you that ‘conduct’ is only taken into account in exceptional circumstances. But why should this be; and – anyway – what is ‘conduct’ under this part of MCA 1973?
In its form in the original 1970 legislation the reference to conduct was as a sweeping up provision at the end of s 25(1). Thus, then, any order should be made such that the court should exercise its ‘powers [so] as to place the parties, so far as it is practicable and, having regard to their conduct, just to do so, in the financial position in which they would have been if the marriage had not broken down and each had properly discharged his or her financial obligations and responsibilities towards the other’ (MCA 1973, s 25(1)). Section 25(1) was extensively amended by Matrimonial and Family Proceedings Act 1984 (and became sections 25(1) and (2)). The conduct factor re-emerged as section 25(2)(g) as set out above.
A doubly subjective approach based on 2020 values
Section 25(2)(g) it is doubly subjective to the views of the individual judge making the sections 23, 24, 24A etc decision. First, the section 25 exercise as a whole is based – as is well-known – entirely on the discretion of the individual judge, subject to section 25 itself. Sections 25(1) and (2) requires that a judge must decide how the court is to redistribute parties’ finances. Secondly, the judge must take a view as to what ‘conduct’ it is ‘inequitable to disregard’. If conduct is raised as a factor by a spouse the individual judge must say whether he or she thinks it should be ignored; and why. That means the individual judge in 2020 must decide – whatever judges may have said over the years – what cannot be overlooked; or, as MCA 1973 says, what it is ‘inequitable’ (ie not fair to the complainant) ‘to disregard’.
Thus the judge must take a view based on society’s view in 2020 of what a court should and should not ‘disregard’ (the section indulges in a series of negatives which does not make it any easier to construe). MCA 1973, as Sir James Munby P reminded us in Owens v Owens  EWCA Civ 182,  4 WLR 74 is an ever-living Act, it must adjust to society as need be. (As it happens the male judge against whom Owens was an unsuccessful appeal has since treated attempted rape as insufficient to justify a non-molestation injunction: see JH v MF  EWHC 86 (Fam) (22 January 2020). Mrs Justice Russell treated attempt rape as ‘conduct’ in that context; so there can be differing judicial views as to what is ranked as ‘conduct’.)
In 1970, when the Act was came into effect, all judges were male; society often tolerated a different level of bad conduct as acceptable; and courts therefore in 1970 paid less regard to ‘conduct’ under section 25(2)(g). The liberal views of the 1960s on the back of which the 1970 legislation came in were still repressive of women, in a way which is still only developing in 2020. Even the far-seeing and liberal Lord Scarman in 1978 would have defined ‘domestic violence’ (as it was termed then) in a more restrictive way to those who have drafted the domestic abuse bill below: see Davis v Johnson  UKHL 1,  AC 264. With an ever-living Act the courts must be forever reappraising what it means and must adjust as society matures; and so it is which the meaning, in 2020, of ‘conduct’ in section 25(2)(g).
Domestic abuse bill
At Easter 2020 we have a domestic abuse bill which, at clause 1, redefines what is meant by ‘domestic abuse’ in law. Should we not assume that in 2020 – following on from the similar definition in Practice Direction 12J … domestic abuse and harm – society’s approach to a view of ‘conduct’ is in line with clause 1, namely:
1 Definition of ‘domestic abuse’
(3) Behaviour is “abusive” if it consists of any of the following—
(a) physical or sexual abuse;
(b) violent or threatening behaviour;
(c) controlling or coercive behaviour;
(d) economic abuse (see subsection (4));
(e) psychological, emotional or other abuse; and it does not matter whether the behaviour consists of a single incident or a course of conduct.
(4) “Economic abuse” means any behaviour that has a substantial adverse effect on B’s ability to—
(a) acquire, use or maintain money or other property, or
(b) obtain goods or services.
On the passing into law of the bill – which is not controversial – the law will be that any of these forms of ‘behaviour’ (a word which is synonymous with ‘conduct’) – can give rise to a claim for an injunction in family proceedings; but most will give rise to a damages claim in tort proceedings, and may give rise to a criminal charge. This fact and the ‘damages’ which accrue to the claimant in civil proceedings, should surely – 50 years after the coming into operation of Matrimonial Proceedings and Property Act 1970 (which lead to MCA 1973) - be reflected in a financial provision claim under MCA 1973, Pt 2.
I do not know whether judges in 2020 will look at section 25(2)(g) any differently, in the light of such developments as are presaged by the 2020 bill; but the question, in appropriate cases, can surely be raised?