Could your spouse’s behaviour affect your divorce settlement?

Family Law|July 7th 2017


In this regular column, Stowe Family Law solicitors address different legal issues and answer readers’ questions.  Today’s topic goes to Mark Heppinstall, a solicitor in our Ilkley office. If you have a question, send it to our contact address and we’ll choose one to be featured.

Clients often ask me if the conduct of their spouse will affect financial arrangements following marital breakdown. Although it rarely does, I can quite understand why people might think otherwise, particularly when a client feels that their spouse’s conduct has:

  1. caused or contributed to the breakdown in the marriage
  2. resulted in financial loss; or
  3. frustrated court proceedings.

When thinking about how to divide marital assets the Court is obliged to decide whether either party’s conduct is relevant to their decision. In particular, the Court has to consider:

“the conduct of each of the parties… if that conduct is such that it would in the opinion of the court be inequitable to disregard it…”

It is helpful to pause for a moment and consider what “conduct” actually means. As lawyers, when talking about conduct we are generally referring to specific forms of behaviour, which the Courts will tend to address in different ways.

To take the above examples, behaviour which causes or contributes to the breakdown of a marriage is often referred to as an example of “personal misconduct”. Meanwhile, behaviour which causes financial loss is often referred to as “financial misconduct” and behaviour that frustrates court proceedings is generally called “litigation misconduct”.

Personal conduct

Personal misconduct is often relevant to divorce proceedings. For example, in England and Wales divorce petitions can be presented on the basis of the other spouse’s behaviour – for example adultery or ‘unreasonable’ behaviour. It follows therefore that personal conduct is relevant when considering how divorce proceedings might be progressed to end a marriage.

Having said that, neither unreasonable behaviour nor adultery actually have any impact upon how financial arrangements are actually made and it is the exception rather than the norm to see personal misconduct taken into account when the courts decide how to split the financial pot following the breakdown of a marriage.

Personal misconduct has to have been very serious to persuade a family court that it would appropriate to penalise the misbehaving spouse, by reducing their settlement. Some examples of cases where personal conduct has been held to be relevant include:

  • a wife who shot her husband.
  • a wife who stabbed her husband.
  • a husband who attacked his wife with a razor.
  • a husband who committed incest with his children.

Financial conduct

The courts are generally more likely to take into account financial misconduct than it is personal misconduct, though this is still the exception rather than the norm. This is particularly so in circumstances where a party has recklessly ‘dissipated’ (spent or disposed of) assets before or during financial remedy proceedings.

Examples of behaviours which might constitute relevant financial misconduct include:

  1. excessive gambling
  2. lavish, unjustified spending; or
  3. trying to place assets beyond the reach of one party, for example by transferring property into a third party’s name.

The situation is by no means clear-cut however. Indeed, in the well publicised case of MAP v MFP (heard by Mr Justice Moor in 2015) the wife was unsuccessful in arguing that her husband’s conduct was relevant; despite the fact that he was alleged to have spent up to £6,000 a week on cocaine, he had a long-standing gambling problem and he had periodically paid for the services of escorts!

Fast forward to 2017 and the case of R v B & Others (also heard by Mr Justice Moor) makes an interesting comparison. In this case the husband was heavily criticised for the way he managed his finances, having failed to pay tax for over 20 years, claiming that he had no income and illegitimately drawing money from a family business to disastrous effect. In this case the judge did not hesitate to find that the husband’s conduct was relevant. He therefore favoured the wife’s case and this ultimately resulted in the court endorsing her proposals for settlement.

Often, when financial misconduct has been found, the court will endeavour to rectify the wrong caused to the innocent party by ‘adding back’ the money or assets that have been dissipated and treating the case as if the party at fault still had them. In practice this means the court may be more willing to depart from the starting point of equal sharing and give more assets to the innocent party to produce a fairer result.

Litigation conduct

Litigation conduct is more about how parties behave in court proceedings. Examples of litigation conduct which are likely to be taken into account by the court include:

  • Ignoring or breaching court directions.
  • Failing to provide financial details (‘disclosure’) in a timely manner.
  • Failing to attend court hearings without good reason; or
  • Deliberately misleading the court or other parties.

In contrast to personal and financial misconduct, litigation misconduct tends to be addressed by the making of an ‘adverse costs’ order. What this means in practice is that the party at fault may be required to pay all or a contribution towards the innocent party’s costs.

The key lesson here is that each case will turn on its own facts and what might constitute misconduct in one context will not necessary do so in another. In the absence of certainty it is important that careful consideration is given to legal arguments relating to conduct at an early stage, particularly if there is a possibility that it might be a relevant feature in your case.

This is all the more important because if a conduct argument is pursued in court unsuccessfully, or one fails because it lacks merit, then an adverse costs order could be made against the person who tried to make it.

If you think conduct might be a relevant feature in your case feel free to contact one of our lawyers to discuss this further and we will be happy to provide you with a general appraisal of your case.

Mark Heppinstall is a senior solicitor in our Ilkley office. He acts for clients in respect of divorce and financial remedy proceedings as well as children disputes. He has also acted for separating parties who have entered into civil partnerships, unmarried and cohabiting couples, usually in disputes of jointly held property.

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  1. Mr CB says:

    My STBX wife has sited in the fabricated misconduct case she wants to Perdue with her legal team is that during the course of my self employment I clocked up 87,000 miles on the marital car. Is this serious enough to be considered?

    • Mark Heppinstall says:

      I have to say that is an example of “misconduct” that I certainly haven’t come across before. Do get in touch if you would like a more detailed opinion and I will be happy to speak to you should your case be on-going.

  2. ChrisB says:

    Believe it or not a major part of my wife’s miss conduct claim against me is that during the course of my self-employment I clocked up 90,000 miles on the family car!!

    • Mark Heppinstall says:

      I have to say that is an example of “misconduct” that I certainly haven’t come across before. Do get in touch if you would like a more detailed opinion and I will be happy to speak to you should your case be on-going.

  3. Mary says:

    My husband was verbally and physically abusive throughout our marriage and after I left.
    I took nothing but my clothes from the house and offered him a clean break settlement for a quick divorce which he refused.
    He has refused to acknowledge the initial divorce proceedings and has dragged out the whole process for a year and a half now.
    He has also hidden 62K cash and transferred it as a ‘gift’ to his brother.
    I had proof of the cash in his account but now he is pressing charges against me for getting the bank statements without his permission.
    My husband is clearly using the legal process to cause more damage and inconvenience to me and to maintain control over my life.
    I can’t move on. I can’t buy another house, I’m currently staying at a relatives home which has to be sold and I will soon be homeless. This man is wrecking my life.
    Is there no legal prevention for this? My final court date is on the 24th October. Can we not tell the judge what he is doing? Is there a form for this?

    • Cameron Paterson says:

      Hello – solicitor Neil Dring has put together this response for you:

      “In a situation such as yours, where you have been abused by your husband throughout the marriage, it is vitally important that you do not allow yourself to be bullied by him during the legal process of the divorce as well, particularly when it comes to dealing with the financial claims that you will have against him and for your fair share of the family home and savings.
      The verbal and physical abuse that you suffered at his hands during the marriage will be the basis and the grounds for your divorce and will be acknowledged in that way. From what you say it seems as if the hearing on the 24th October may well be the final divorce court date. If you do not yet have a lawyer acting for you it is vitally important that you have a lawyer look over the divorce documents and all of the court orders urgently to make sure everything is in place so that your divorce goes through as you hope (and as you should be entitled to) on that date.
      It is not usual for any behaviour or misconduct (on either side) to be taken into account to any great length when deciding how to divide up the money in the house and in the joint savings. You are not likely to get a greater share of the joint assets because of his behaviour towards you during the marriage. However a process does exist to make sure that you do receive a full and fair share of all of the assets. That will include the cash that it seems your husband has transferred to his brother. Provided that proof is brought before the court and the proper process is followed, that money will be brought into account by the court and if necessary his brother will be ordered by the court to transfer the money back to him so that you can receive a share of it.
      The court can order that your husband pay to you a lump sum for your share of the total joint assets, and if necessary can order a sale of the jointly owned family home if he is still living in it. The protection does exist to ensure that you receive your fair share of the joint assets. However you do need to make a formal application to the court for financial orders and a solicitor can guide you through that. They will give you initial advice about your position at the same time as discussing the divorce process itself.
      For the time being, as indicate above, it is vital that you receive urgent advice from a solicitor given the court date is just around the corner”.

  4. Paula says:

    I’ve been reading this blog site a lot recently, my soon to be ex husband has played the courts for almost two years.
    He left me, taking half a million pounds with him, bought houses and put them in our children’s names, we reached a settlement in may this year, he didn’t stick to it, he has refused to give full financial disclosure, he’s re mortgaged property even though there was a court order in place preventing this. He spends money like it’s going out of style. He refuses to acknowledge correspondence from the courts, he doesn’t even attend hearings, his own solicitor dropped him, refuses to pay the court ordered legal fees to my solicitors, who as a result will no longer represent me. A top London firm have been outwitted by a bully and the courts allow it. And he’s still doing it, the court system is useless. I can’t get divorced because I can’t pay a solicitor. Where do we get legal advice and help from now?
    25 years of marriage and I will end up with nothing. He’s turned my children against me, taken my grandchildren from me. So, I quite literally have nothing. Except debt.

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