Today’s Guardian has an article entitled :
The article refers to a case raised by Gloria de Piero MP in which a man who was convicted of the attempted murder of his wife is seeking £60,000 of their assets in their divorce. Ms De Peiro has suggested that the law should be changed to create a ‘legally enforceable presumption of loss of entitlement to family assets in such extreme domestic violence cases’.
What is the current law?
On divorce, the court has to decide how the parties’ assets should be split. Some couples reach agreement on this and ask the court to approve their agreement, but the type of case where one party has attempted to murder the other is, I think we can all agree, unlikely to be a case when the parties are able to negotiate a settlement. Mediation – the government’s panacea for all family disputes – is definitely out.
When splitting the assets, the court has to take into account a number of factors listed in section 25 Matrimonial Causes Act 1973, with the overall aim of being fair to both parties. A court’s usual priority is to ensure each party has somewhere to live and enough to live on. It will look at their needs, their earning potential, the length of the marriage, their ages, and a number of other factors.
Do we take conduct into account now?
The conduct of the parties is one of the elements that we take into account but only if it is really serious. In order to be considered, the conduct must be ‘inequitable to disregard’. As Lady Hale said in a case called Miller  1 FLR 1186:
“It is only equitable to take their conduct into account if one has been very much more to blame than the other: in the famous words of Ormrod J in Wachtel v Wachtel  Fam 72 at 80 the conduct had been ‘both obvious and gross’ … It is simply not possible for any outsider to pick over the events of a marriage and decide who was the more to blame for what went wrong, save in the most obvious and gross cases.”
The courts are looking for conduct that has what another judge called a ‘gasp factor’ – so bad that when you hear about it you gasp. Where conduct reaches this level, the court will take that conduct into account in splitting the assets.
In a case called S v S  EWHC 2793, the judge rejected an argument from each party that the other’s bad conduct should be taken into account – the behaviour in that case being an eye-wateringly long list of arguments including violence against people and home furnishings, which you can read here. It did not, however, reach the ‘gasp factor’, being – in the words of the judge ¬ more of a ‘gulp’.
What is the position when there is a ‘gasp factor’?
Almost all the key cases on conduct that has the gasp factor involve attempted murder or a very serious attack on a spouse. For example, in H v H (Financial Relief: Attempted Murder as Conduct)  EWHC 2911 (Fam), the husband was serving 12 years for attempted murder, having stabbed the wife repeatedly in front of their children. She had been unable to work since the attack. The court held that:
The conduct was not merely a backdrop to the s 25 exercise; it had had direct consequences for the wife which had to be taken into account: it had seriously affected her mental health; it had imposed a move away from home; it had almost destroyed her earning capacity, in particular her police career; it was likely to have an impact upon the children in later years, which the wife would have to cope with; it had deprived the wife of any prospect of financial or parenting support from the husband for many years to come; and it could have an impact on her established relationship with a man. It was necessary that the wife be made as secure as possible, free from financial worry or pressure.
The court awarded her all of their jointly owned house, all of its contents, bank accounts, and insurance policies, totalling about £180,000, leaving the husband with £30,000 plus his pension and £50,000 of his sole assets.
In another case also called H v H  2 FCR 1031 the husband attempted to rape the wife and seriously assaulted her. The judge noted that referred to ‘the extremity and horror of the violence to which the wife was subjected’. The husband went to prison, the wife got all the assets such as the jointly owned matrimonial home, with the husband keeping his pension.
In each of these cases, all or virtually all of the joint assets have gone to the victim, leaving the husband with his pension and any solely owned assets. Had the wives’ needs not been met by the assets they were awarded, it is easy to imagine the court dipping into the husband’s solely owned assets too.
What is the MP proposing?
Gloria De Peiro is arguing that there should be a presumption (starting point) that ‘those convicted of murdering or attempting to murder their partners;’ should not be able to receive any family assets, which I take to mean joint assets (the term used at another point in the article). That means that the abuser would have to justify why they wanted a share of the joint assets. They would presumably still keep their own (sole) assets.
In the cases above, one received no joint assets and the other received about 14% of the joint assets. That means that it is very unlikely that a presumption would have changed the outcome.
Moreover, the proposed presumption applies to those who have been convicted to the criminal standard of attempted murder. Currently, the courts in matrimonial proceedings could take this into account if it was proven to a lower standard: ‘is it more likely than not that they did this’ rather than needing to wait for a conviction showing that they did it ‘beyond reasonable doubt’. Finally, by limiting it to attempted murder or murder, it is narrower than the types of serious attack already taken into account, which may fall short of this but are nonetheless very serious indeed. The legal split of a couple’s assets really should not depend upon the CPS’ charging decision.
What about actual murder?
Where someone is murdered by their spouse, clearly the court does not then go on to deal with their divorce. But De Peiro is suggesting that there should also be a starting point that the murderer should not be able to inherit these assets either.
However, there is already a rule that anyone convicted of homicide forfeits any inheritance from the person they’ve killed, but that under the Forfeiture Act 1982 the court can (but presumably will not always) let them inherit in cases of manslaughter but not murder. (Manslaughter is probably discretionary to allow for a wide range of circumstances attracting different levels of moral and legal culpability.) Section 1(1) Forfeiture Act 1982 defines the forfeiture rule as “the rule of public policy which in certain circumstances precludes a person who has unlawfully killed another from acquiring a benefit in consequence of the killing.” Indeed, this rule goes back as far as the infamous murderer Dr Crippen.
This rule also applies where the killer inherits under the survivorship rule which applies to certain jointly owned assets that pass to the surviving co-owner without passing under a Will: Henderson v Wilcox  EWHC 3469 (Ch). The killer does not receive the other person’s share.
So again, it appears that this is not a legal change that is needed.
Is this change needed?
Given the courts’ approach above, this would be an unnecessary amendment to the law. That’s not to say that this proposal is not well-intentioned, but courts already take into account conduct and already award most if not all joint assets to the victim on divorce, and there is already a rule about it on death. Inserting a starting point really changes nothing and risks a narrower approach. Moreover, given limited Parliamentary time, there are plenty of more pressing amendments that are needed to family law legislation, such a preventing alleged victims from being cross-examined by alleged perpetrators.
Many thanks to fellow Transparency Project member Barbara Rich, barrister, (@BarbaraRich_law) for help with the inheritance angle.
Feature Pic courtesy of Mark Strozier on Flickr (Creative Commons) – thanks!