Unreasonable behaviour was the most common reason for opposite-sex couples divorcing in 2018, with 51.9% of wives and 36.8% of husbands petitioning or applying on this ground; it was also the most common reason for same-sex couples divorcing. Not surprisingly, I’m frequently asked by clients in Bristol whether their spouse’s conduct will also have any impact on their financial settlement. Will their soon to be ex be financially penalised for their cheating, gambling, or decision to leave them and the marriage? Or will they, seen as the cause for the breakdown, suffer financially by perhaps receiving less than they might have done otherwise?
Unlike some other legal jurisdictions in the World, the family court in England & Wales stays clear of determining the why-and-wherefores’ behind the relationship breakdown in a marriage and will only where it would be ‘inequitable to disregard it’, consider one party’s conduct as a factor in determining the financial settlement. As a senior judge has put it:
“It is simply not possible for any outsider to pick over the events of a marriage and decide who was the more to blame for what went wrong, save in the most obvious and gross cases”.
Those obvious and gross conduct cases have included financial, as well as personal, misconduct including woeful financial mismanagement or reckless and wanton dissipation of assets. As another senior judge has put it.
“A spouse cannot be allowed to fritter away the assets by extravagant living or reckless speculation and then to claim as great a share of what was left as he/she would have been entitled to if he/she had behaved reasonably”.
So, although behaviour may be outrageous to the client on a personal level and may seem obviously gross and obvious to them, the role of the Family Court is not to pass moral judgement but to determine financial closure. So, whilst tempting to point the finger and claim your spouse has behaved badly, justifying retribution, unless the court can affect those consequences in a fair way, it can’t otherwise recognise the behaviour claimed.
Often this is upsetting news for clients, who feel they should be compensated for their ex’s behaviour in some way. At such an emotional time, this can be hard to hear, but it is imperative that clients receive accurate legal advice about the view the Family Court takes on such behaviour that’s not deemed obvious and gross. Otherwise, irrevocable relationship damage can be done along with a hike in legal costs, neither of which is beneficial to the long-term outcome of separating and divorcing clients.
It seems counter-intuitive to divorce someone on the grounds of their “unreasonable behaviour” and then completely set aside those allegations when dealing with the financial settlement. It is therefore vital that our new parliament implement no fault divorce as soon as practicable. Once parties have made the choice to divorce, they need to focus on the future and behave constructively so that a financial settlement can be achieved. That’s is difficult to do when the first part of the divorce involves either listing the other party’s “unreasonable behaviour”, or reading such allegations being made about yourself.
If you’re in a relationship where bad behaviour or conduct is happening, contact our expert solicitors.