‘If I had my way, I'd make A do X and B do Y…’ has long been a treatment proffered by layperson pundits across the land, whether discussing politics in the pub or the outcomes of legal proceedings during a dinner party.
However, a man from Kansas, USA, recently sought to convert this sort of sentiment into action when he asked a court to let him engage his ex-wife in sword-to-sword combat in order to resolve their embittered and long-standing divorce arguments.
Asking that they be allowed to legally resolve their disputes on the field of battle, the appellant, David Ostrom, stated that his ex-wife, Bridgette Ostrom, and her divorce lawyer, Matthew Hudson, had used child arrangement and property law to the point of causing him to be “destroyed legally”.
Ostrom appeared to acknowledge the irrational nature of his request by saying he was fighting the absurdity of his wife and divorce lawyer's actions with his own absurdity. He added that, if she so wished, Mrs Ostrom could elect Mr Hudson to step in and fight on her behalf.
Given that Mr Ostrom’s actions seem more inspired by the so-called chivalrous code of honour perpetrated in the Elizabethan era than any legal principle or precedent of today, the case for dismissing the request out of hand may appear clear cut.
However, it could be some time before the Judge in the case makes any ruling. Having cited irregularities with the legal actions of both parties, he said that no decision would be reached until proper procedural steps were followed, thus putting the case on hiatus and not furthering the matter for either party.
Litigation misconduct – the court takes a dim view
Justice systems in general, and especially the UK family law courts, tend to take a very dim view of parties who engage in unnecessary contention, evasion, deception or insincerity in court.
However much a disenfranchised party might feel aggrieved, actions such as that of Mr Ostrom – even if they are merely symbolic – show a clear disrespect or even disdain for the legal process. In Mr Ostrom's case, the US court system is likely to be unimpressed.
Several cases in UK family proceedings show the Family Division's view of litigation misconduct – from recalcitrant spouses to serial incidences of non-disclosure, the courts can, and do, take action when failure to comply with court procedure interrupts and delays the serving of justice.
The case of R v K  EWFC 59 (Mr Justice Baker) is a useful illustration of the way in which courts perceive any divorcing party who takes a flippant or dishonest approach to divorce financial settlement proceedings.
The divorcing couple, who were both 52, had three children together and had been married for 25 years. However, the husband, who had built considerable assets over the course of a career in property development and, alongside his wife, had come to enjoy a lifestyle replete with private jets, overseas property, valuable artworks, luxury cars and a yacht, sought to exaggerate the extent of his liabilities.
The wife knew and accepted that their joint finances at the time of divorce were no longer able to maintain their previous lifestyle, but the husband sought to overplay this decline. He offered the court only limited financial disclosure, did not comply with a maintenance pending suit (MPS) order calling for arrears of around £485,000 to be paid and sought to make a great show of the £20 million he said he owed HMRC.
The husband attempted to persuade the court that his net worth amounted to a debt of £8.1million and rejected arguments that he had deliberately and maliciously spent £4.2 million in a short space of time. The husband's financial settlement proposal to sell the family home and split the proceeds equally with his wife, while he retained two French properties, a flat in Knightsbridge and all of his business assets, was not accepted.
Mr Justice Baker found the husband to be untruthful, unreliable and disrespectful of the court. He also found that the husband's stated levels of debt were greatly exaggerated in order to defeat his former wife's claim and that he had failed to disclose numerous business interests, and continued to profligately spend money on himself while failing to comply with the MPS order.
Judge Baker ordered a lump sum payment of £2 million to the wife. He also ordered the sale of the family home as well as one of the French properties, with the proceeds to be given to the wife. Furthermore, the husband was ordered to pay monthly child maintenance of £3,000 as well as monthly periodic spousal payments of £10,000 until such point as he had paid the £2 million lump sum.
Finding a realistic, open and collaborative approach
The best outcomes in divorce and family law are invariably those that involve a frank, open, professional and respectful approach. Collaboration or mediation are two of the best ways to achieve this, but in the event they are not appropriate or fail to provide resolution, it is possible to litigate in good faith.
Arbitration is another possible path. By having a specialist family lawyer to act as an arbitrator it can be possible to achieve an objective and impartial decision without the protraction, stress and relative expense of the courts. It also saves the expense and the potential discomfort of making recourse to swords.