Dispelling Myths – Does Bad Behaviour Affect your Divorce Settlement?

Divorce is often a very difficult time, Marriages can end for very different reasons but often one party feels very aggrieved by the actions of the other, such as when there has been an affair or general bad behaviour which has been the catalyst for the breakdown of the marriage. Jeanette Birch, Family Lawyer answers a commonly asked question “Does bad behaviour affect your divorce settlement?”

A financial remedy case is the legal term for dividing assets on divorce or separation. It covers all aspects of a financial settlement to include property, maintenance and debts. In these cases various circumstances are taken into account such as the needs of each party and the length of the marriage, but there is a common misunderstanding that if one party has behaved badly, such as had an affair, then they will suffer as a result when the financial settlement is negotiated.

This is often in fact not the case, and in financial remedy cases the role of conduct is often overestimated by the parties involved with misconceptions about the influence that this will have upon any outcome. Conduct is unlikely to be a significant factor in most cases except in the most serious of circumstances.

The overarching principle of fairness in financial remedy proceedings focuses on the needs and contributions of the parties when deciding who gets what. It is the priority of the financial remedy court to prioritise the needs of the parties. This minimises the influence of conduct in most cases.

There is a myth that poor conduct can be a determining factor in financial remedy proceedings as a matter of course whereas in reality it is an exception. Conduct is a secondary consideration to addressing the parties needs.

Judges have a discretionary power to consider conduct and how it varies case-by-case but unless there is a “gulp” and a “gasp” factor to the facts of the case this is unlikely to succeed. The focus is on achieving a fast and practical financial resolution.

When considering the parties needs the court has to look at how the financial assets can be divided in a fair way so as to re-establish both parties moving forward into the future. That is affected by a number of factors including the parties ages and earning capacities and housing needs but conduct would rarely ever contribute to this.

For conduct to contribute to a division of finances the conduct would have to be so bad that it would be inequitable to disregard it. It must also have had a financial consequence upon the matrimonial assets to be divided which is very difficult to establish. Cases that have established this basis are cases where one party has gambled large amounts of matrimonial money away or has dissipated assets so as to affect the financial pot. These are rare circumstances and the application of a conduct argument is a rare case.

There is a high poor conduct threshold to reach and this must be followed by a causative link between the facts and financial loss. It is difficult to meet this test.

The conduct can be divided into two broad categories as follows,-

1. Personal misconduct – relates to bad behaviour of one party during the marriage. This is often raised but is rarely effective. Conduct such as adultery or unreasonable behaviour will not be sufficient to have any impact. The courts are not there as a moral arbiter of a marriage but to implement a legal division of the finances. General poor conduct will not affect this.

2. Financial misconduct – this relates to making false statements or wilful nondisclosure of finances during proceedings and purposely dissipating assets prior to proceedings in an effort to reduce the amount available. This is very difficult to establish.

This approach has been reinforced in 2020 by Mr Justice Mostyn confirming that “the financial remedy court is no longer a court of morals. Conduct should be taken into account not only where it is inequitable to disregard but only where its impact is financially measurable. It is unprincipled for the court to stick a finger in the air and arbitrarily define a party for what it regards as immoral conduct.”

The reality of conduct and financial cases is that its significance is often exaggerated. Whilst it may play a role in the most serious of cases, including violence and injury, the legal landscape is shaped by a commitment to fairness, needs and contributions. Understanding that conduct has a limited impact allows individuals to navigate the process with a clearer perspective despite that being a difficult position to take when emotions are involved.

Jeanette Birch explains that “Trying to argue a conduct case within financial proceedings is hardly ever going to be successful and at Sinclair Law we always encourage our clients to take a practical and reasonable approach to try to achieve settlement of their case as amicably and as swiftly as possible so as to reduce the emotional and financial impact upon them moving forwards.”

For a free 30-minute consultation about child arrangements, financial settlements, divorce or any family law matter, contact Sinclair Law on 01625 526 222 or request a call back using our web form.

Does Bad Behaviour Effect your Divorce Settlement?