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I am often asked whether a spouse’s behaviour would have an effect upon the financial settlement following a divorce. Indeed there is a common misconception that one person’s ‘bad’behaviour will mean that their spouse will receive a larger financial settlement by way of compensation for one and penalisation for the other. But is that right?
Conduct is one of the factors that the court should take into account when looking at the appropriate financial settlement within divorce proceedings. However the law is very clear in that the conduct will only be taken into account if it is so serious that it would be unfair for the court to disregard it.
Of course deciding on whether conduct is such that it should be taken into account will be subject to interpretation. I often hear comments such as “It was my husband who went off with someone else so why should he get anything?” and “She recklessly gambled away lots of our money so why should she get half of my assets?”. When looking at the relevance of conduct in divorce there are two types to be considered: personal misconduct and financial misconduct.
Personal misconduct involves some sort of ‘bad behaviour’ on the part of one party. In my experience it is the type of misconduct that is complained of the most but it is actually very rare that it has any bearing upon the financial settlement. Adultery and most forms of ‘unreasonable behaviour’ will probably only be relevant when deciding who should pay 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 outside the range of normality. Ordinary fighting and quarrelling in an unhappy marriage would not be sufficient and neither would one party having committed adultery. Examples of cases where personal misconduct was taken into account included cases where a wife shot her husband and where a husband committed incest with the children of the family. Thankfully these types of cases are extremely rare.
Financial misconduct is normally defined when one party recklessly or purposely squanders assets prior to the divorce proceedings, thereby reducing the amount of the ‘matrimonial pot’. Examples of this are gambling and spending money on unnecessary things like expensive holidays and cars.
In such circumstances the court will try to put right the circumstances by ‘adding back’ the money or assets that have been spent and continuing on the basis that the party still has them.
It is also important to note that conduct during the course of the divorce proceedings, such as failing to comply with a court order, is not usually punished by providing a lower settlement to the ‘guilty’ party. However they can be penalised by the court ordering that that party pay a contribution towards the other party’s costs. This is known as ‘litigation conduct’.
To summarise, it is quite unusual for a conduct claim to be successful, especially if the misconduct is personal. It is therefore very important to seek legal advice before embarking on such a claim as this could save considerable expense in the long run.