Conduct in Financial Remedies, Past, Present and Future Perspectives

Abstract

This thesis explores how the law divides assets upon divorce. It considers how the parties' conduct can affect this process. The role of conduct in financial remedies is rarely discussed in case law. Decisions depend largely on judicial discretion, which appears reserved for the most severe abuse cases. With the introduction of no-fault divorce, the question of conduct’s continued relevance in asset division has become more important than ever.

Conduct is often divided into four categories: personal conduct, wanton dissipation of assets, litigation misconduct, and failures to disclose. This thesis focuses on personal conduct because of its status as arguably the most contentious and oldest form of conduct.

To understand conduct, this thesis examines its past, present, and future. It traces the origins of conduct through history and explains how discretion, morality, and gender emerged in judicial and parliamentary commentary. The analysis of modern case law identifies how discretion can perpetuate these historical norms. The thesis details how these norms have appeared and how efforts to limit them have affected the understanding of non-violent abuse.

When assessing the future of conduct, this thesis challenges the notion that the current discretionary system is fit for purpose. Instead, the set of rules that were created to help govern discretion have stifled the development of interpretations of modern abuse. It concludes that the future of conduct requires reform, favouring a rules-based approach to better protect the financial interests of divorcing parties.