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.

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