The Exception that proves the Rule? Reassessing Conduct in Financial Remedy Cases


Stuart Barton

Senior Associate Solicitor

We asked Senior Associate Solicitor Stuart Barton to provide some expert insight into a recent Divorce case:

Divorcing parties frequently mention to their lawyers that abusive conduct on the part of their spouse during the marriage justifies a position that their spouse should be ‘penalised’ by receiving a lesser share of the marital assets. Abusive conduct can of course come in various forms, both physical and mental/psychological. As awareness of the massive scale of domestic abuse in England and Wales has generally increased since the Covid 19 Pandemic, lawyers are generally finding that parties are more willing to ‘open up’ upon how their spouse was responsible for abusive behaviour during their marriage and the effect that this may have had upon them.

In the vast majority of divorce cases however, such conduct is likely to remain only a source of personal trauma for the victim, rather than an issue that the Family Court might meaningfully explore. The Family Court has long remained steadfast in its position that conduct must be ‘exceptional’ to be taken into account. We usually have the difficult task of advising that domestic abuse it itself is unlikely to reach the extremely high ‘tipping point’ where the Family Court considers that it should be taken into account as a significant factor in assessing how financial matters should be resolved upon divorce. However deplorable the abusive conduct may be according to the victim, obtaining a finding from the Court that such abuse occurred remains a massive challenge. Equally important is that the Court must find that the abuse has led to a financial or economic impact upon the victim which is of significance.

However, a recent case in Northern Ireland does highlight that psychological trauma suffered by a victim of domestic abuse may, in extreme circumstances, meet the threshold of exceptional conduct in such cases. The case in question concerns Alison and James Seales and is certainly exceptional in terms of its background.

In 2014, James was convicted of murdering Philip Strickland. He is currently serving a life sentence for that murder, despite proclaiming his innocence. His conviction led to the separation of him and his wife, Alison and subsequent divorce/financial remedy proceedings. Alison, who was married to James for 19 years, sought a greater share of the parties’ £1m assets in the circumstances. Unsurprisingly, James disagreed and submitted that this was a case where an equal division of the assets was entirely justified.

The Judge dealing with the case acknowledged the exceptional background to the parties’ divorce. Despite James’ denials that he had been responsible for any domestic abuse towards Alison, the Judge found it proved that he had been responsible for such abuse and concluded that Alison was suffering with symptoms linked to post-traumatic stress disorder.  The Judge concluded:

“In my view, the consequences of the husband’s involvement in the murder of Mr Strickland on the life and physical and mental health of the wife have been profound.

“I am also satisfied that the husband’s conviction and its aftermath has had a profound impact on the wife’s ability to earn a living. She gave evidence that she was not able to work due to her anxiety.

“The lack of gainful employment would obviously make it difficult for her to obtain a mortgage in the future. Unsurprisingly, she wants to move from the current matrimonial home.

“This case is, in my view, the paradigm example of a conduct case where the husband’s conduct is so outrageous that it would be utterly inequitable to disregard it. I am therefore compelled to take both aspects of the husband’s matrimonial conduct into account in the division of the matrimonial assets.”

“I consider that, in the light of my findings of fact in relation to the conduct of the husband, the appropriate decision in this case is that the assets of the parties shall be divided on the basis of 75% to the wife and 25% to the husband.

“This must not in any way be regarded as further punishment of the husband for the crime of murdering Mr Strickland. His punishment for that was delivered by the criminal courts.

“In reaching this ancillary relief decision, I have taken into account the conduct that the wife has suffered for many years, its impact on her physical and emotional health, and that I do not foresee the wife ever being able to engage in gainful employment, such has been the devastation to her well being.”

It is of course important to highlight that the background to the above case is truly exceptional. It is equally important to highlight that it was primarily the economic impact of James’ conviction and abuse upon Alison that enabled the Judge to justify a significant departure from equality in terms of how the assets of the marriage should be divided. The case cannot really be seen as a ‘game-changer’ because its unique factual background is highly unlikely to ever be repeated. However, the outcome does suggest that judicial attitudes towards the psychological scars that domestic abuse can leave upon a victim are perhaps changing.

If you have been a victim of domestic abuse during your marriage, don’t suffer in silence. We can’t promise you the same outcome as Alison Seales but will always deal with your case sensitively and with compassion. We are here to help.

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If you are separating, a number of issues may arise on which sound legal advice is essential. We can talk you through alternative dispute resolution options, to help mitigate the need for expensive and drawn-out court proceedings.

Call Stuart on 01254 77 81 48, email, talk to us via live chat or complete our online enquiry form and one of our experts will contact you.

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