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Consequences of poor litigation conduct

March 24, 2021

When you apply to the court to decide how your assets should be divided between the parties as part of your divorce, known as financial remedy proceedings, the court considers a wide range of factors contained in section 25 of the Matrimonial Causes Act 1973 (“MCA 1973”).

In the case of Rothschild v De Souza [2020] EWCA Civ 1215, the court considered these factors, including the analysis of the parties’ needs and their conduct in relation to financial remedy proceedings.

The parties married in 2005 and separated in 2016 and had two children who lived with the wife.

A total of £800,000 had been spent on litigation costs, including on applications under the 1980 Hague Convention on the Civil Aspects of International Child Abduction and various financial remedy proceedings hearings.

A financial remedy order was made in February 2020 (the “Order”), and there was a departure from equality to meet the needs of the wife and the children and her debts created by the husband.

The wife kept the family business, and the husband received a lump sum. The Order included that the husband would sell a Miami property and the wife would receive a lump sum. The day before the hearing the court and the husband’s ownsolicitors discovered that the husband’s beneficial interest in the property had been transferred to his mother.

The husband appealed the Order on the basis that the judge had only considered the wife’s needs and his conduct had been taken into account when deciding the split of the assets even though the judge had said that conduct was not relevant.

The appeal was dismissed because the court found that litigation conduct can be considered under section 25(2)(g) MCA 1973 as part of an analysis of the parties’ needs because money spent on litigation costs is money that is not available for distribution between the parties which in turn means the parties’ needs are not met.

This case is a reminder of how poor litigation conduct is considered by the court and may reduce the financial remedy award a party is entitled to, even if they would otherwise have been entitled to a greater share of the assets based on their needs. It is important to only bring court proceedings if absolutely necessary and to be honest and open about financial disclosure otherwise you may be penalised by the court.

Wallace Robinson & Morgan Limited are based in Solihull and Dorridge and serve clients across Birmingham and the West Midlands, Warwickshire, Worcestershire and further afield. Our team of Family Lawyers are happy to help if you would like advice about agreeing a financial settlement or beginning financial remedy proceedings.

If you would like to discuss your matter, please call 0121 705 7571 and ask to speak to a member of the Family law team or email us at

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