Held, conduct excluded from consideration. (1) Although the parties were male civil partners the principles relevant to the consideration of conduct in financial remedies proceedings were equally applicable to all relationships, paragraph 21(2)(g) of Schedule 5 to the Civil Partnership Act 2004 being worded in identical terms to section 25(2)(g) of the Matrimonial Causes Act 1973. Personal misconduct, including domestic abuse, had to be of a high degree of exceptionality to be capable of consideration and that high bar was undisturbed by the recent focus on domestic abuse in society and the family justice. While accepting that the statute did not specifically refer to a financial consequence, and the theoretical possibility of conduct being taken into account absent such a financial impact ought not to be ruled out completely, nonetheless a review of the authorities suggested that such cases would be vanishingly rare and it was difficult to see how personal misconduct, with no adverse financial consequence, could readily be quantified in a principled manner. The preponderance of authority clearly militated firmly in favour of financial consequences being a necessary ingredient of a conduct claim. There ought to be an identifiable financial impact, even if it was not always easily measurable, and there had to be a causative link between the conduct and the financial consequences. The alleged conduct (even if it reached the threshold and had a financial consequence) had also to be material to the outcome. Since, in the vast majority of cases, a fair outcome was ascertained by reference to the other criteria in section 25 of the 1973 Act (including needs and impact on earning capacity) without requiring the court to examine conduct, an inquiry into conduct had to be proportionate to the case as a whole with courts continuing to case manage conduct allegations robustly at the earliest possible opportunity (paras 1, 24, 28, 29, 38–40).

(2) In the present case, the allegations of conduct were to be excluded from the issues for consideration at trial for, inter alia, the following reasons: (i) having extra partnership encounters, and dishonestly concealing them, did not in and of itself constitute conduct for the purposes of financial remedies; (ii) it was very difficult to be satisfied that the infidelity and deceit had caused the applicant’s mental health to decline and necessitated the treatment for depression; (iii) although the conduct alleged might have been wicked and immoral that was not the same as saying that it fell with that very rare band of cases where it would be taken into account in the financial distribution; (iv) the only direct financial consequence pleaded was increased medical costs; (v) where the applicant would be entitled to a share of the assets built up during the civil partnership and his needs met, the conduct issue did not add anything to his case and was disproportionate since it would considerably add to the length of the case and the costs to no purpose; (vii) the financial distribution could be fairly achieved by reference to all the other statutory criteria without any need to take account of the conduct allegations and the conduct, even if found, would make no material difference to the outcome (paras 43–45).