In what will be considered one of the most stressful times in an individual’s life, it is no surprise that many people behave badly during a divorce. It is a stressful life event, that many reckon to be on par with the death of a family member. With that being said, it is important that if you are going through a divorce, your conduct throughout the proceedings is important and it could have an impact on your divorce. To behave poorly is a reflection not only on your character but also affects the actual outcome of your divorce.
In a divorce, your conduct in the course of proceedings can be taken into account by the judge, although generally speaking misconduct during the proceedings is more properly dealt with in an adverse application for costs against you.
What are some examples of “bad behaviour” and misconduct in a divorce? Wanton dissipation/reckless dissipation of assets is one form of misconduct. In KMD v PIB [2011] HKFLR 351, the husband was excessively spending on his lifestyle as well as his hobby of flying helicopters and this was taken into account by the court, resulting in HK$1.2 million being “added back” from his 50% shares into the matrimonial pot for division. In MKKWH v RKSH [2013] HKFLR 540, the husband maintained three (3) other families over a period of years and post-separation the wife sought to add back an equivalent sum of monies that her husband had spent on his other families. In this case, the Court of Appeal refused the wife’s application to add back these funds on the basis that the funds had been received post-separation. In A v B [2017] 1 HKLRD 187, the court held that payments to a girlfriend of HK$1.2 million was “wanton” and “reckless” and “extravagant” in view of the marital assets and the standard of living, and the court therefore added back into the matrimonial pot, the non-marital spending.
Material non-disclosure is another form of misconduct in litigation such as monies being hidden. In SANK v PGN [2011] HKFLR 390, the court considered whether a husband’s non-disclosure and refusal to mediate should result in a costs award to the wife. The court concluded that “[t]here are many reasons which may affect the court in considering costs, such as culpability in the conduct of the litigation; for instance material non-disclosure of documents.” Parties to a divorce have a duty of full and frank disclosure and by failing to disclose, the courts will take this misconduct into consideration.
Another form of misconduct is a refusal to attempt to settle. In LWF v LMF [2015] HKFC 146, the wife’s failure to respond and attempt to negotiate was a relevant factor for the husband being awarded costs. The same misconduct label is also attached to litigants who refuse to provide evidence and/or participate in proceedings such as filing necessary paperwork and/or attending court hearings. By refusing to participate, the court will have no choice but to see the case as one-sided and only make decisions based on the actual evidence in front of the court.
The courts in Hong Kong have a duty to have regard to the conduct of the parties to a marriage. Negative marital conduct can be detailed in sworn affidavits filed with the court and will be considered by the court as a material factor in allowing the court to depart from equality (See LKW v DD). However, it is to be noted that if there is a departure from equality, the courts will look for “obvious and gross” misconduct for it to be taken into account.
