I was recently asked by someone contemplating divorce whether their spouse’s conduct would have an effect upon the financial settlement. This reminded me that there is a common misconception about the relevance of conduct to divorce settlements, so I thought I would say a few words on the subject.
Many people going through divorce believe they should receive a larger financial settlement because of their former spouse’s conduct. But is this the case?
The answer to the question is that conduct is one of the factors that the court should take into account when deciding the financial settlement, but only if the conduct is so serious that it would be unfair for the court to disregard it.
There are two types of conduct to be considered: personal misconduct and financial misconduct.
Personal misconduct involves some sort of ‘bad behaviour’ on the part of the ‘guilty’ party. It is perhaps the type of conduct most often complained of, but it is actually very rare that this type of conduct has a bearing upon the settlement. Certainly, adultery and most forms of ‘unreasonable behaviour’ will normally have no bearing (although they may have a bearing upon who pays the costs of the divorce).
To be a relevant factor in a financial settlement, personal misconduct has to be of a very serious nature, and even then there is no guarantee that a court will penalise that party by reducing the amount of their settlement.
Examples of cases where personal misconduct was taken into account were set out in FS v JS in 2006. These included cases where a wife shot her husband with a shotgun, where a wife stabbed her husband and where a husband committed incest with the children of the family. As will be seen, these all involved very serious misconduct, but thankfully such misconduct is quite rare.
More common are cases involving financial misconduct. In these one party recklessly or purposely dissipates assets just prior to the financial remedy proceedings, thereby reducing the amount available for division. Examples of this are gambling and spending money on unnecessary things, such as in the case of Norris v Norris, where the husband’s reckless expenditure included such things as expensive holidays and a £115,000 Ferrari motor car.
In such financial misconduct cases the court will try to rectify the situation by ‘adding back’ the money or assets that have been dissipated, and proceeding as if that party still had them.
In these instances it is quite easy to see how the conduct will affect the financial settlement. However, in other cases, especially personal misconduct cases, it is up to the court to decide the appropriate response.
Note that conduct during the course of the proceedings, such as failing to cooperate or comply with the requirements of the court, is not usually penalised by a lower settlement, but can be penalised by an order that that party pay a contribution towards the other party’s costs. This is known as ‘litigation conduct’.
It is important that parties to financial proceedings understand how conduct can affect divorce settlements, especially where they are not represented. Pursuing an unreasonable claim for conduct to be taken into account could result in the claimant being penalised on costs, as well as having to pay any additional costs that they have incurred themselves.
In summary, it is quite unusual for a claim that conduct should be taken into account in a divorce settlement to be successful – especially if the alleged misconduct is personal. Accordingly, you should consider the matter very carefully before making such a claim. And taking good legal advice could certainly save considerable expense in the long run.