What is the gasp-factor in divorce and how much influence does behaviour have on financial settlements?
Guest blogger, Rebecca Moore, trainee solicitor at the Stowe Family Law Harrogate office has joined us to share her experience.
“A question that is frequently asked by clients is whether their partner’s bad behaviour will be considered when deciding the financial settlement”.
Well, it may come as a surprise but a spouse’s affair or bad behaviour that caused a marriage to break down is very unlikely to affect the final financial settlement.
In Court, conduct has very little relevance unless the behaviour is so serious that it is considered as having the ‘gasp factor’ and that it would be so grossly unfair on one of the spouses to disregard it. In these cases, the Court should take conduct into account when deciding upon financial settlement.
There are two types of conduct a Court will consider:
Personal misconduct amounts to bad behaviour. Cases that come into this category are rare and include very serious physical, sexual assault, attempted murder or incest. Anything less serious than these examples will likely fall short of a conduct argument having any weight.
There are rare historical cases where personal misconduct has been considered including:
A husband guilty of “very grave” misconduct in abducting the children of the marriage in contempt of court (Al-Khatib v Masry  1 FLR 1053).
The case of a wife stabbing her husband in the abdomen with a knife (Hall v Hall  FLR 631)
Husband seriously assaulted his own wife with a knife with financial consequences, namely destroying her Police career (H v H  1 FLR 990).
Thankfully these cases are rare but they do highlight the severity of the misconduct that is considered.
Classed as when one spouse actively dissipates assets or acts recklessly leading up to the proceedings, financial misconduct, is much more common. In this case, a Court may treat that party as if they were still in possession of those assets and re-attribute them back to that party when looking at the total assets.
Cases can include excessive gambling or reckless purchases, for example in the case of Norris v Norris where the husband spent money on a £115,000 Ferrari ( 1 FLR 1142).
The recent case of MAP v MFP ( EWHC 627 (Fam)) however made it clear that re-attribution to the ‘guilty party’ should only be used when the financial misconduct is deliberately done to reduce the other spouse’s share.
In the case of MAP v MFP, the husband had a serious £6000 a week cocaine and alcohol habit, had spent £230,000 on rehab and had been involved with prostitutes. The Judge ruled that whilst irresponsible, these were not deliberate dissipations and therefore the wife should take the husband as she finds him, refusing an add-back of £1.48million.
Conduct within proceedings
What the Family Court will consider is the conduct of the parties whilst in proceedings. If the parties fail to comply with orders in the Family Court, for example, the requirement of a spouse to; disclose information, prevent the disposal of assets or order one party to make financial provision to the other, the Court has the power to attach a penal notice.
A penal notice warns a party that they may be sent to prison or fined if they do not comply with the order. When a party fails to comply with an order the other party may apply to the Court for a committal order. This is conduct that the parties should be aware of during financial proceedings and ensure that they comply with court orders to avoid the risk of being in contempt of Court.
All about the gasp factor
So yes, in extreme cases, behaviour can impact on the final settlement but these cases are few and far between. With relatively common misconduct such as adultery or unreasonable behaviour, the Court will almost always overlook this when considering the assets available for distribution in finance cases – however strongly the parties may feel.