When you are going through a divorce, it is completely natural to feel that your ex spouse’s behaviour should count for something financially, especially if it has been unreasonable or hurtful.

“They’ve wasted money – surely that matters?”

“They treated me terribly – won’t the Court take that into account?”

The reality is more complex and this is exactly where expert advice can make a real difference.

In financial remedy proceedings the Court’s main goal is fairness – not punishment.

Under Section 25(g) of the Matrimonial Causes Act 1973, conduct is one of the factors a Judge must consider when deciding what financial orders to make; but only if it would be ‘inequitable to disregard it’ (i.e. unfair or unjust).

Whilst there is no legal definition of ‘conduct’, over the years the Courts have highlighted points that a party asserting conduct must prove, such as behaviour that is ‘obvious and gross’ and that there is an identifiable negative financial impact upon the parties generated by that behaviour.

Quite often conduct arguments fail because the legal threshold is so high. Most of the time, the Court is not interested in who was to blame for the breakdown of the marriage. Affairs usually won’t matter, general bad behaviour is unlikely to count and the Court will focus instead on fairness, needs and resources.

There are circumstances where conduct can significantly impact the outcome – but only if it is identified early and presented correctly.

If your ex partner has hidden assets, spent money recklessly or excessively or given away money to avoid sharing it, the Court may step in. Handled properly, this can lead to assets being “added back” into the pot or a more favourable settlement for you.

Very serious personal conduct may be relevant where it would be clearly unfair to ignore it. These cases are rare but when they do arise, they require careful handling to succeed.

Many people assume that conduct will strengthen their case but in reality pursuing a weak or unsupported argument can increase legal costs, delay settlement and damage credibility with the Court. Raising an unsuccessful conduct argument can in fact lead to cost sanctions being imposed upon you. A focused, strategic approach is therefore essential and knowing when not to pursue conduct is just as important as knowing when to raise it.

If you are concerned about your ex’s behaviour – especially financially- early advice makes a real difference.  Contact our family team today to get clarity on your position.

The Repeal of the Presumption of Parental Involvement: A Landmark Shift in Children Law.

The presumption of parental involvement was introduced in 2014, through amendments to the Children Act 1989, to help ensure children could maintain a relationship with their parents following separation.

Whilst the presumption did not guarantee equal contact, calls for reform grew amid concerns that it contributed to a culture in which maintaining parental contact was prioritised by the Court, at times insufficiently accounting for risks posed by factors such as domestic abuse.

Following a number of high-profile cases where children were exposed to harm under Court ordered arrangements, the Government has decided to repeal (i.e. remove) the legal presumption through the new Courts and Tribunals Bill, which is currently passing through Parliament.

Ultimately the reform represents a major shift in emphasis. The Family Court will no longer presume that parental involvement is inherently beneficial as a starting point. In the absence of the presumption, Judges must rely more heavily on the established welfare checklist (Section 1(3) Children Act 1989) which considers factors such as the child’s wishes, relationship with each parent and any history of risk of harm.

The new framework aims to ensure that decisions are grounded in evidence rather than assumption, placing the child’s welfare and safety at the centre of every decision. This shift complements another significant development in the family justice system, the Pathfinder project, which is being rolled out nationally over the next 3 years as the Child Focused Model (CFM) or Child Focused Court. The CFM turns the way that the Courts deal with children matters on its head, with Cafcass providing a detailed Child Impact Report at the beginning of proceedings instead of nearer to the end, ensuring the Court is equipped with more detailed information from professionals on the impact of the current dispute and circumstances on the child before any decisions are made.

The repeal of the presumption of parental involvement has sparked debate, with supporters arguing that it strengthens protection for children and survivors of domestic abuse, and critics warn that it may unfairly reduce the involvement of otherwise safe parents or lead to more false allegations and increased conflict in disputes.

If you would like advice around the arrangements for your children , please contact the Family Team at Hine Solicitors and one of our experts would be happy to support you.

Family law in England and Wales has entered a new chapter following the April 2024 changes to the Family Procedure Rules (“FPR”), which place greater emphasis on resolving disputes outside of Court. These reforms aim to promote the use of Non-Court Dispute Resolution (“NCDR”), including mediation, encouraging separating families to find constructive, cooperative solutions wherever possible. 

Why Were These Changes Made?

Court proceedings can often be lengthy, expensive, and emotionally draining especially for parents who still need to co-parent following separation. The new approach aims to support better communication, less conflict, and quicker solutions including in cases involving children and finances. By encouraging NCDR, the aim is to help families find common ground early on, in a less confrontational setting. These reforms also respond to the growing pressure on the Family Courts, which are currently overburdened with cases and long delays.

What Is NCDR?

NCDR is a formal term for any way of settling a family matter without going to Court. The main types of NCDR include:

Mediation: A trained, neutral professional helps you and your ex-partner talk through issues and reach a joint decision.

Hybrid Mediation: You each bring a lawyer into the process outlined above.

Arbitration: You agree to let a neutral third party make a decision (like a private judge).Neutral Evaluation: A specialist gives an expert view on what a Court would likely decide, to guide your negotiations.

Collaborative Law: You each have your own lawyer, but everyone commits to working things out together through face-to-face meetings.

What Do the 2024 Rule Changes Do?

NCDR is broader and the law now clearly supports different types of NCDR, not just mediation.

Courts now have enhanced powers to adjourn proceedings and direct parties to attend NCDR, unless an exemption applies (e.g., domestic abuse). The Court must also, at every stage in the proceedings, consider whether NCDR is appropriate. 

Before going to Court, you’ll need to show you’ve properly considered alternatives like mediation, and explain why you did or didn’t try them.

If someone refuses to try mediation or another NCDR option without good reason, the Court can impose cost consequences.

Are the New Rules Working in Practice?

Since the reforms came into force, judges have been able to promote engagement in NCDR and this includes directing parties to consider NCDR. Appeal Courts have also confirmed these powers asserting that ordering a stay to allow for NCDR is permissible, as long as it’s a fair and reasonable step.

Solicitors and family practitioners are adapting too by proactively raising NCDR proposals early in proceedings to reduce the risk of costs, penalties or judicial criticism later on.

Family Mediation Voucher Scheme 

The Family Mediation Voucher Scheme offers a financial contribution of up to £500 towards the cost of mediation for separating couples, aiming to reduce the emotional and financial strain of Court proceedings. Eligibility is limited to cases involving child arrangements, or financial disputes where child arrangements are also being discussed. The scheme is available to parties who attend a Mediation Information and Assessment Meeting (“MIAM”) with an accredited mediator participating in the scheme.

The government’s Family Mediation Voucher Scheme provides evidence confirming that over 70% of families who use mediation through the scheme report either full or partial resolution of their disputes.

If you wish to obtain advice as to the NCDR processes and which form of NCDR would work best for you please contact the Family Law Team at Hine Solicitors and arrange an appointment with us.