The divorce penalty for poor conduct
During financial resolutions in a divorce or dissolution, it sometimes happens that one of the
parties was not engaged in the process, causing delays but also costs. In this context, the law
recognizes this bad behaviour and sanction it. There are four types of conduct that family
courts recognize. One of these concerns ‘personal’ misconduct and take into consideration
seldom. Three types of behavior are set out in the judgment in OG v AG [2020]: 1
1. The “add-on” argument, when a party has ‘without cause and recklessly’ dissipated assets
that would otherwise have been part of the pool of assets to be distributed among the parties.
2. Lack of full and frank disclosure, when a party fails to disclose all its financial resources.
3. Contentious misconduct; concerns the way in which a party engages in the legal process
itself.
In the case, the parties suffered £1million in costs. Judge Mostyn conveyed that the amount
was the result of the husband's conduct in the litigation but considered that the wife did not
mediate fairly once the financial situation was clear. 2 The rule of family procedure 28, 3 and
the corresponding practice guideline 28A deals with costs in family matters. 4 The general rule
is that ‘a court will not order one party to pay the other party's legal costs unless the court
considers it appropriate because of the party's conduct.’ It is so critical that as soon as the
financial panorama comes limpid, both sides negotiate with the disposition to resolve. In the
recent case of LM v DM [2021] , 5 the wife was victorious in her application for interim
maintenance, nevertheless, she recuperated 30% of her legal cost because she hadn’t tried to
reach a compromise and brought suit ignoring the possible result. 6 Practice Direction 28A
accents that there can be costs repercussions even in a ‘needs’ case. 7 ‘Needs’ cases are where
the total assets accessible are less than or just enough to permit the parties to meet their
decent ‘needs’, with no surplus for sharing.’ Costs consequences can aggravate an already
precarious financial position and leave the party in debt when it is settled. Notwithstanding,
the court has manifested a readiness to be firm, as it can be studied in the affair of WG v HG
[2018]. 8
Costs in family proceedings
The relevant costs provisions are set out in the Family Procedure Rules 2010 (FPR 2010) Part
28, 9 Statutory Instrument (SI) 2010/2955, 10 , Practice Directions (PD) 28A. 11 Specified
sections of the costs provisions of the Civil Procedure Rules 1998 (CPR) SI 1998/3132, 12 also
1 OG v AG [2020] EWFC 52.
2 Pennington Manches Cooper LLP, ‘The cost of your conduct’, < https://www.penningtonslaw.com/news-
publications/latest-news/2021/the-cost-of-your-conduct >, access 2 July 2021.
3 The Family Procedure Rule 2010, < https://www.legislation.gov.uk/uksi/2010/2955/part/28/made>.
4 Practice Direction 28A costs, <https://www.justice.gov.uk/courts/procedure-
rules/family/practice_directions/pd_part_28a>, access 28 May 2019.
5 LM v DM [2021] EWFC 28.
6 ibid, < https://www.bailii.org/ew/cases/EWFC/HCJ/2021/28.html>, access 11 March 2021.
7 Practice Direction (n 4).
8 WG v HG [2018] EWFC 84.
9 The Family Procedure (n 3).
10 Family proceedings senior courts of England and Wales county courts, England and Wales magistrates’
courts, England and Wales The Family Procedure Rules 2010, Order 2010, SI 2955 (L.17),
<https://www.legislation.gov.uk/uksi/2010/2955/pdfs/uksi_20102955_en.pdf>.
11 Practice Direction (n 4).
12 The Civil Procedure Rules 1998, <https://www.legislation.gov.uk/uksi/1998/3132/contents/made>.
apply to family proceedings. In RM v TM [2020], 13 Robert Peel QC, blamed the parties 'costs
amounting to £600,000 when the sole liquid asset was the sale of a family home worth
£630,000, leaving them with £5,000 each. JB v DB [2020], 14 concerned the implementation of
a consent order. The afternoon before a meeting the husband cancelled due to what his
solicitors characterized a money problem. Mostyn. J observed that considering the amount he
was liable, he could afford expenses. Because he failed to engage properly in negotiations, he
faces a sanction assessed at £15,000.’
In 2019, the consultation of the Committee on Family Procedure Rules (FPRC) questioned
whether the rules of family procedure (RPF) should be amended to introduce ‘offers without
prejudice to costs’ which would be judged as “behavior” of a company part for purposes of
RPF r28.3, 15 and examined in determining whether a party should be sentenced sanctioned?’ 16
The International Family Law Group LLP (IFLG), a leading London law firm in national and
international families supports this reform. Fairness and a reduction in the number of final
hearings are their two main reasons for supporting the introduction of 'offers without
prejudice to cost', for all financial recourse cases, subject to the guarantees related to the costs
circumstances of the case. 17 The first consideration of the court should be the welfare of any
minor child, a principle contained in Article 25 (1) of the Matrimonial Causes Act 1973
(MCA), 18 and the factors contained in Article 25 of the Matrimonial Causes Act 1973
(MCA). 19 They also should be taken into account in needs-based settlements. The priority
should be to ensure that parties have their basic needs met; needs often not meaning basic
needs like accommodation. Most of the cases involve needs, even if they are wealthy needs. 20
There are already early open offers, but they are rarely used for fear that they will be used in
a hearing when the decision is different, such as after full disclosure; they are perceived to be
contrary to the best interests of the clients, moreover, the court will decide fairly based on all
the circumstances. 21
Given the burden on the courts, on the parties both financially, emotionally, and as parents,
the IFLG considers that the introduction of ‘offers without prejudice’ to all financial remedy
proceedings would be beneficial.
Article written by Laetitia Ponde Nkot
13 In RM v TM [2020] EWFC 41.
14 JB v DB [2020] EWHC 2301 (Fam).
15 Family Procedure (n 3) r28.3.
16 Ministry of Justice, ‘Consultation in relation to the treatment of Calderbank offers when determining issues
relating to costs’, <https://consult.justice.gov.uk/digital-communications/treatment-of-calderbank-offers-
consultation/>, access 16 July 2019.
17 International Family Law Group LLP, ‘The International Family Law Group LLP’s Response to the FPRC's
Consultation in relation to the treatment of “Calderbank” offers when determining issues relating to costs’,
<https://www.iflg.uk.com/printpdf/1205>, access 1 November 2019, 5-6.
18 Matrimonial Causes Act 1973, s 25(1).
19 Matrimonial Causes Act 1973, s 25.
20 IFLG (n 16), 17-19.
21 ibid 6-15.