Can Bad Behaviour Affect a Financial Settlement on Divorce?

If you are separating or divorcing and have questions about how your husband or wife’s behaviour will affect your financial settlement, then the divorce solicitors at Evolve Family Law can help you. 

Call Evolve Family Law or complete our online enquiry form.

Divorce proceedings and unreasonable behaviour

Since the introduction of no-fault divorce proceedings, all you need to say to obtain a divorce is that, in your opinion, your marriage has irretrievably broken down.

There is no longer a requirement to explain the reasons behind the breakdown of the relationship, and no need to cite and give examples of a spouse’s unreasonable behaviour.

Divorce law was changed to make it less acrimonious. A husband or wife no longer needs to think of six to eight ways in which their spouse behaved unreasonably. That’s a good thing, as no-fault divorce avoids disputes over who should start the divorce proceedings.

Although you can no longer refer to unreasonable behaviour in divorce proceedings, you can refer to unreasonable behaviour on the part of your spouse when applying for:

1. An injunction order – a non-molestation order or occupation order.
2. Children law order, such as a child arrangement order, specific issue order, prohibited steps order or relocation order.
3. Financial court order – if the circumstances justify it.

Bad behaviour and the impact on divorce financial settlements

When you ask the court to make a financial court order, you can ask the court to consider your spouse’s bad behaviour when deciding on the size or structure of the financial settlement.

The court is duty-bound to consider several factors (referred to as the Section 25 factors, as they are contained in Section 25 of the Matrimonial Causes Act 1973). One of the factors is conduct if the court thinks it would be inequitable to disregard it.

Alleging behaviour in financial  proceedings

When you file your Form E in the financial court proceedings, you have the option to include a reference to bad behaviour. The court may ask you to file a detailed statement setting out your behaviour allegations and how they should affect the financial settlement, and your spouse will be given the opportunity to reply.

The threshold to raise bad behaviour is high. Although your husband or wife may have behaved very badly by having an affair, being abusive or being a spendthrift, you should speak to a divorce solicitor about whether the bad behaviour will be considered relevant in the financial court proceedings. A specialist finance lawyer will advise you on the best way to secure a financial court order that meets your needs after balancing the impact of the bad behaviour on you and the likelihood that the court will consider it relevant, having regard to statute and caselaw.

Is the bad behaviour gross and obvious?

The court’s view is that a spouse’s conduct will only affect the financial settlement if it is ‘gross and obvious,’ and so serious that it would be unfair for it to be ignored.

Whether a spouse’s conduct has been serious enough to be classed as ‘gross and obvious’ will be a highly subjective decision.

What is classed as bad behaviour in financial court proceedings?

Several forms of bad behaviour or conduct may affect the size or structure of a financial settlement. These include:

1. If a spouse has a gambling addiction and has gambled away a lot of the family’s money.
2. If a spouse has assaulted and injured the other spouse, so that the injured spouse’s ability to work and earn money has been affected.
3. If a spouse has been found guilty of a financial criminal offence. For example, a conviction for fraud will prevent the spouse from providing spousal maintenance or child support for their family.
4. If a spouse has remortgaged the family home without telling the other spouse, and used the mortgage funds for their purposes.

Every family situation is different, so although you may believe your spouse’s behaviour was gross, it is best to check with a divorce lawyer. The family law solicitor can advise if the specific behaviour is likely to have an impact on your financial settlement after assessing all the circumstances.

 You might also be interested in

What is financial misconduct during the financial court proceedings?

A spouse or former spouse may behave badly during the financial court proceedings. Examples of this type of behaviour include:

1. Dragging out the financial proceedings, or running up needless and excessive legal costs. This isn’t usually reflected in the financial settlement. Instead, the court can order the irresponsible spouse to pay some or a proportion of the other spouse’s legal costs.
2. Hiding assets or transferring assets to family members. The court can be asked to make a Section 37 injunction order or to join family members into the financial court proceedings.
3. A spouse lying about their financial situation and not giving full financial disclosure.

The judge can deal with poor behaviour  during the court proceedings by:

1. Ordering the guilty spouse to pay some or all the other spouse’s legal costs.
2. Structuring the financial settlement differently.
3. Assuming, when making a final financial decision, that the guilty spouse is much wealthier than they say they are.
4. If the lying is discovered after a final decision, the decision or financial court order can be set aside, and the process started again.

Financial settlements can be structured differently if the judge accepts that a spouse has behaved badly or is not trustworthy. For example, a judge may think that it is best to award a spouse a larger share of the equity in the family home because there is a risk that if the equity were split equally, the wealthier spouse would not pay the ordered spousal maintenance because their behaviour during the marriage or the proceedings indicates they are not trustworthy.

How much does bad behaviour change the financial settlement?

The impact of the conduct on the financial settlement will vary greatly and entirely depends upon the circumstances of a family.

A specialist family law will consider:

1. The bad behaviour.
2. The impact of the bad behaviour on the other spouse.
3. The additional costs of arguing that bad behaviour is relevant to the financial court order.
4. The likely prospects of the court agreeing that the bad behaviour is relevant to the financial settlement and awarding a better financial settlement.

In every case of bad behaviour, your divorce solicitor will carry out a cost-benefit analysis of whether the additional time spent arguing your valid points will help you achieve a better financial settlement. Sometimes it won’t, but your divorce lawyer will instead recommend an alternative strategy to get you the best financial settlement possible, such as:

1. Filing a questionnaire to ask specific questions about your spouse’s financial disclosure and asking for more paperwork.
2. Asking the judge for permission to instruct a forensic accountant to assess the value of a family business.
3. Instructing a shadow accountant to investigate complex financial transactions or investments.
4. Asking a pension actuary to value the pensions accurately.

Why choose Evolve Family Law as your divorce lawyers?

Here are three reasons to choose Evolve Family Law as your divorce solicitors:

1. We are a niche law firm specialising in family law and private client services with offices in Holmes Chapel and Whitefield.
2. All our divorce lawyers are experts in their field. They are also approachable and will do their best to answer all your questions and help you reach a financial settlement or childcare arrangement that suits you.
3. Many of our family law services are provided on a fixed fee basis. When we charge on an hourly basis, we are transparent about our fees.

Here are some client reviews.

If you need family law legal advice, we are here to help.

Call Evolve Family Law or complete our online enquiry form.