K v L

In ancillary relief proceedings, misconduct is a statutory factor but not a punitive device. Its relevance lies in the consequences for the other spouse and family, and in whether fairness permits a claim for needs against that spouse. The court must exercise its discretion on the particular facts and should resist broad rules about when conduct overrides need or other factors. A non-binding promise not to make financial claims may nevertheless be an important factor. A challenge to the resulting award must identify more than disagreement with the weight given to relevant considerations. Conduct in the proceedings may separately justify a costs order, so consideration of that conduct is not impermissible double-counting.

The husband sought permission to appeal, together with an extension of time, against ancillary relief and costs orders made by Mr Justice Moylan on 4 June 2009. Following the husband’s conviction and imprisonment for sexual offences against two of the wife’s grandchildren, the judge ordered transfer of the husband’s interest in a property abroad in return for £100,000, imposed a clean break, and ordered him to contribute £50,000 towards the wife’s costs. The husband argued that his needs and the wife’s substantial resources required a larger award, and that his misconduct had been treated punitively and double-counted in the costs order. The central issues were whether there was an arguable error in the exercise of discretion and whether general guidance should be given on the effect of misconduct in ancillary relief.

1. Disposition. Lord Justice Wilson refused permission to appeal. The application for an extension of time was left without an order because it became academic once permission was refused.
2. Conduct and substantive award. Under the Matrimonial Causes Act 1973, s 25(2)(g), the court may take the husband’s grave misconduct into account. The relevant consideration was not punishment or moral condemnation, but the destructive effect of the misconduct on the wife, her children and grandchildren, and the resulting fairness of requiring the wife to fund the husband’s future accommodation or maintenance. A transfer of existing assets from a husband to an already wealthy wife might have been punitive, but that was not what had occurred.
3. The court must exercise its discretion by reference to the particular facts. It would be unwise to formulate a general rule identifying when conduct overrides needs or other statutory factors. The judge was also entitled to attach significant weight to the husband’s 1993 promise not to take advantage of the wife’s greater wealth, despite the promise being non-binding under current law, and to treat the subsequent duration of the marriage as carrying limited weight in the circumstances.
4. Appellate review. The proposed challenges amounted to disagreement with the weight given to relevant factors. Such disagreement is ordinarily a matter for the trial judge. A successful challenge to a discretionary ancillary relief decision requires a distinct error, such as failure to consider a relevant factor or consideration of an irrelevant one.
5. Costs. The costs order was based on conduct in relation to the proceedings under rule 2.71 of the Family Proceedings Rules 1991, including the husband’s unreasonable litigation stance and failure to make a realistic settlement proposal. That conduct was distinct from the misconduct relevant to the substantive award, so there was no improper double-counting. Even if the inheritance assessment proved wrong, the judge was entitled to conclude that it would not be fair to require the wife to meet the husband’s economic needs.

• Court of Appeal (Civil Division): On 15 January 2010, Lord Justice Wilson refused permission to appeal and made no order on the application for an extension of time: [2010] EWCA Civ 125.
• High Court, Family Division: Mr Justice Moylan made ancillary relief and costs orders on 4 June 2009, including a £100,000 lump sum, a clean break, and a £50,000 contribution towards the wife’s costs.