"In so far as the resources are not there to enable [Mr Rothschild] to have the same freedom, that is the inevitable result of statute requiring me to give first consideration to the children and because of the way that [Mr Rothschild] has acted since the breakdown of the marriage which has been vindictive and irrational, and which has caused a huge and unnecessary haemorrhage of money to pay for this litigation.
“It is obvious that this has been the most destructive litigation. There is no avoiding the fact that [Mr Rothschild] is very largely responsible for the situation that has arisen. Since the breakdown of the marriage he has acted destructively and throughout the litigation without any regard to the normal rules.”
It remains the case that difficult and malicious behaviour exhibited by one party during financial remedy proceedings can be punished with adverse costs orders, an adjustment of the asset division, or both.
This type of behaviour, referred to as “conduct” is not just limited to litigation conduct, but any conduct which the court considers it would be inequitable to disregard.
With that in mind, what type of conduct might a court consider relevant, or “inequitable to disregard”? In the Rothschild case, Ms De Souza alleged the following conduct perpetrated by Mr Rothschild had impacted adversely on the “financial circumstances of the family”:
- Deliberate and wanton overspending and dissipation of assets, for the husband’s sole benefit, and at a level wholly unsustainable as against the assets that were available and the family’s needs moving forwards;
- Destructive behaviour which has impacted negatively on the value of the assets;
- The husband’s refusal to allow the rental (or rental at a commercial rate) of the property portfolio since the separation, resulting in repossession proceedings and other enforcement proceedings, together with increased costs, as well as depletion of other capital and income to save them;
- The husband’s refusal to obtain any form of paid work in the three years since separation to assist in meeting the increased costs of a separated household and litigation;
- The husband’s behaviour which had impacted on the children, increasing the expenses associated with meeting their needs;
- The husband’s refusal to participate appropriately within the proceedings, bringing unmeritorious applications and consistently failing to comply with orders and deadlines, needlessly increasing costs by a vast amount; and
- The husband’s refusal to agree to the release of assets on an interim basis to allow each party to meet legal fees, forcing the wife resort to expensive specialist litigation funding at significant costs that could have been avoided.
