Sunday, June 07, 2009

Inequitable to disregard

Parties involved in ancillary relief proceedings often try to raise the issue of conduct to bolster their claims. As we all know, conduct is one of the section 25 factors that the court should take into account, but only "if that conduct is such that it would in the opinion of the court be inequitable to disregard it". This is a high threshold, and very few cases have been reported where the threshold has been crossed. Accordingly, I almost inevitably have to advise clients that their (former) spouse's conduct is not sufficiently serious to have a bearing on the amount of the settlement (although it often seems that the solicitor on the other side has not given such advice to their clients).

Another example of the level of conduct required has just been reported in the media. Here, the husband failed entirely in his claim against his ex-wife, despite his contribution to a 25-year marriage, as he had been convicted of 17 offences of child abuse, including molesting two of her grandchildren. Mr Justice Moylan, sitting in the High Court, said that the "circumstances of this case are such that it would be inequitable for the wife to make any financial provision for the husband". I think few would argue with that, but will the husband?

2 comments:

  1. I will give it a crack as I think if was a woman would get support.

    What I heard - my sol - was that conduct was only a factor if it reduced the other spouses ability to work.

    I do not see how this does.

    It is strange - and worrying - how much discretion judges seem to have. With re to paedophiles, I have no experience of them but don't think they are witches. I hope never to have any experience of them. Still, aren't they a criminal rather than civil court matter? A rhetorical question.

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  2. On second thoughts, if I were the other spouse I think the Judge was right.

    I guess my sol regarded me not being a paedophile and was talking about the burden of proof for normal people.

    I don't think spouses should have to support spouses who have abused their children and grandchildren. Was doing the devil's advocate thing.

    The point about reducing the other's ability to work was the burdenb I was advised. That's the only point I make. Not a big fan of anyone who abuses children, I have 2 young ones of my own.

    ReplyDelete

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