When I first see a client regarding their divorce, one of the questions they will most often ask is ‘can my spouse’s bad behaviour impact our settlement on divorce?’. Often, the desire to apportion blame for the breakdown of the marriage can result in clients wanting the financial settlement to reflect this, for example when the spouse has had an affair, and the affair has involved some level of dishonesty.
Obviously a spouse’s bad behaviour can be very relevant to the actual divorce proceedings, because under the current law ‘bad’ behaviour always has to be used for a divorce which is started less than two years after separation. The direct financial effect of this ‘bad’ behaviour is usually an order for the ‘bad’ spouse to pay the legal costs of the divorce proceedings (normally about £1,500).
The link between ‘bad’ behaviour and division of finances is less definite, and a spouse will very rarely get less of the family’s money because they have had an affair. However, a spouse’s behaviour during the marriage must be considered by a court (the court refers to it as ‘conduct’) when it is deciding what would be an appropriate financial settlement.
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 will be a highly subjective decision. From my point of view, I know it when I see it!
What is classed as bad behaviour?
There are a number of forms of bad behaviour or ‘financial conduct’, as it is called in legal terms. It is always easier for the court to change the financial settlement if there is a direct link between a spouse’s conduct and the family’s finances, for example:
- If a spouse has needlessly stopped working, or recklessly overspent, or gambled away a lot of the family’s money
- If a spouse has physically assaulted and injured the other spouse so that their ability to work and earn money has been affected
- If a spouse has been found guilty of a financial criminal offence, e.g. fraud
Two other types of financial conduct – during the divorce
- Dragging out the divorce proceedings, or running up needless and excessive legal costs: This isn’t usually reflected in the financial settlement. Instead, the court can order the guilty spouse to pay some or all of the other spouse’s legal costs.
- Hiding assets or lying about your financial situation: This commonly happens, the most high profile example being this month’s Supreme Court cases for Alison Sharland and Varsha Gohil. Rather than changing the financial settlement, the court can do one or more of the following:
- Assume, when making a final decision, that the guilty spouse is much more wealthy than they say they are
- Order the guilty spouse to pay some or all of the other spouse’s legal costs
- If the lying is discovered after a final decision, setting aside that decision and starting all over again
Examples of non-financial conduct
It is less easy, but not impossible, for the court to change the financial settlement as a result of conduct which does not have a direct financial effect.
The fact that one spouse has had an affair, or the usual arguing and name calling that often accompanies marriage breakdown will not normally be considered serious enough to be ‘conduct’.
Examples of non-financial conduct which have changed an award are:
- violent or sexual assaults on the spouse, children or close family members
- refusing to move in with a spouse after marriage
- continued serious harassment of spouse’s new partner
- inability to give spouse respect and affection
How much does conduct change the financial settlement?
The impact of the conduct on the financial settlement will vary greatly, and entirely depends upon the particular circumstances of the case. Often, the person guilty of the conduct will already be in a bad position, for example in jail or having lost their job. However, even in those cases, the court can decide to reduce or even ignore that person’s financial needs because of their conduct.
I have more than 20 years’ experience of divorce and have dealt with pretty much every example of conduct you can think of. If you believe that conduct is a relevant issue to you and your divorce, please call me on 07969211544. I will undertake an initial review of your case for free.
If a partner is so abusive and controlling that they petition the abused party on exaggerated or invented grounds of unreasonable behaviour, can these spurious ‘bad behaviours’ then be used against the innocent partner in a financial settlement case? If the victim of abuse disputes the grounds but agrees the relationship is irreconcilably broken down is it safe to let the petition stand with it’s bogus grounds? Safer than trying to cross-petition an abusive control freak anyway?
Hello Bethany. It is very unlikely that unreasonable behaviour allegations in a divorce petition can be successfully used in subsequent financial issues, although it depends on the nature of the allegations: If extreme conduct is alleged, and particularly if that alleged conduct relates to financial issues (for example that the respondent has a big gambling problem, or that the respondent has been so violent to the petitioner that the petitioner’s ability to work and earn money has been affected) then that conduct might have an impact on financial issues, but the allegations would need to be proved in any subsequent financial proceedings.
In most cases, it would be sufficient (and more cost effective) to deny the allegations in your acknowledgment of service, but not defend the petition, or file a cross-petition, but the final decision depends on a lot of other factors, for example whether the respondent can live with the court documentation stating (in detail) that they were at fault for the breakdown of the marriage, the petitioner’s likely reaction to the respondent defending or cross-petitioning and the petitioner and respondent’s respective abilities to fund defended divorce proceedings.
We’re always happy to have a no-charge initial telephone call to give you a better steer based on your individual circumstances. Please get in touch.
I stumbled across this blog a while back whilst researching my ‘conduct’ case. It was a refreshing change from everything else that I had read. There is very little information available for someone wishing to forward a financial case on the basis of their spouse’s bad behaviour/conduct. All the information I found was very off-putting and warned against pursuing such a case and even the average High Street Family Law solicitors lacked any real experience of true ‘conduct’ cases. This blog post gave me hope that there were lawyers out there that were willing and capable of rising to the challenge of pursuing a conduct argument. I contacted Mr Charrot who kindly offered me his time to discuss my case.
Robin, thank you for your time and quality of advice/information you provided me over the phone. You highlighted the options open to me that I had not considered and helped me weigh up how best to forward my case. Your expertise and experience really came across and you were not fazed by the complex nature of my case. The advice you gave was clearly based on what would be best for me and not just about what you could do for me. Your help was the best engagement with a solicitor I have had. I don’t say this because it was free but because it felt like you genuinely wanted to help.
Thank you so much!