Conduct versus NeedsChristopher Ferguson
Not long ago I was involved in financial relief proceedings involving a couple both of whom were on their second marriage (of some 12 years duration). The wife had children in their twenties from a previous marriage. As usual, the most substantial asset was the Former Matrimonial Home, with a notional net equity of nearly £400,000. This had been purchased with funds mainly, but not quite exclusively, provided by the husband who was retired. Neither party had a high income.
During the marriage the husband was imprisoned for sexual offences relating to children, followed by an attempted reconciliation between the parties and then the revelation (a total shock to the wife) that the husband had also committed other serious sexual offences for which he had not yet been prosecuted, these were in respect of the wife’s own children. The husband was locked up for a few more years, leaving the wife with three particular substantial negative effects of the husband’s conduct:
- She had the burden of meeting the family outgoings in her husband’s absence, while her own emotional and physical health had noticeably suffered as a direct result;
- Her child’s emotional/mental well being had been irretrievably damaged leading to continued dependence at least partially on her;
- The relationship between the wife and another of her children, who held the wife to be partly to be blame, was utterly ruined, to the extent that the wife was now cut out of the life of her grandchild.
Meanwhile, the husband was arguing that now he was out of prison (again) his general prospects were bleak in the absence of most of the equity of the Former Matrimonial Home, the purchase of which he had mainly financed, whereas the wife was still working. The wife argued that her career had been adversely affected by the husband but had difficulty producing evidence to support this. Both parties put forward their urgent need for sufficient funds to re-house when the Former Matrimonial Home was (inevitably) sold.
The “gasp factor”
Much relevant “conduct” caselaw is analysed by Mr Justice Burton in the case in which the term “gasp factor” appears – FS v JS  EWHC 2793 – the wife put this forward. Both parties argued “needs.”
Needs trump everything
At the Financial Dispute Resolution Hearing the court indicated that while the husband’s conduct had some relevance, it did not necessarily include consideration of the wife’s broken relationship with her child – “this is not a court of morals.” The main factor in the case was still held to be “needs”. Consequently a settlement was eventually achieved, under which the wife obtained 40% of the net equity of the Former Matrimonial Home, which was deemed enough to re-house her with at most a small mortgage and allow for the husband’s needs. As one frequently hears at legal seminars, “needs trump everything”. This still seems to be so even in the face of “gasp factor” conduct.