It is a common misconception that an individuals general behaviour will affect the outcome in a divorce. Many clients assume that their partner’s affair, emotional neglect or other awful conduct towards them will result in them securing a more favourable settlement.
This is not always the case, conduct is one the of the factors that the Court can take into account when deciding a settlement. However, the caveat is that conduct is only perceived to be relevant where it is so serious that it would be unfair for the Court to ignore it.
There are generally two types of serious conduct considered by the Court; personal and financial misconduct.
Personal conduct, or bad behaviour, is the most common type raised by clients. In practice it rarely influences the settlement. Whilst adultery and unreasonable behaviour are currently grounds for a divorce (note: see our previous article “‘No-Fault Divorce’ – What Does This Mean For You?” for more information on how the grounds for divorce are changing), they tend to have no real bearing on the financial aspect of a divorce. Personal misconduct has to be exceptionally serious in order for it to be a relevant factor. Even in cases of extreme personal misconduct there is no guarantee that the Court will penalise the ‘guilty’ party financially.
Domestic violence is sometimes taken into account but it often is dependent on whether the conduct has negatively impacted a party’s financial position. In the case of H v H, violent conduct was acknowledged in financial proceedings where a husband’s attack on his wife was so serious that it impacted her earning capacity. Cases deemed to be of this magnitude are rare.
Financial misconduct is the more common type of conduct considered by the Court. This is where one party recklessly or purposefully dissipates assets prior to the financial remedy proceedings, thereby reducing the matrimonial pot and affecting possible settlement. Examples include gambling and frittering away funds on unnecessarily expensive items. This was the case in Norris v Norris, where the husband dissipated funds in purchasing expensive holidays and a Ferrari.
In financial misconduct proceedings, the remedy often adopted by the Court is to ‘add back’ the money dissipated. However, the Court is not bound to automatically grant such an add back. In the case of MAP v MFP the husband became addicted to cocaine. He spent substantial sums on rehab but would subsequently relapse and then spend significant sums on narcotics and other immoral pursuits. The wife attempted to argue that a grand total of £1.5million should be added back as a result but the judge asserted this would not be fair as the husband’s reckless expenditure was ‘morally culpable’ and was not ‘deliberate’; the husband’s motivation was not to deliberately dissipate the funds to skew the wife’s financial claims but was rather due to his own ‘demons’.
Conduct during the actual proceedings can also be taken into account. Should either party fail to cooperate with the Court timetable requirements and, as a result, act in a way that is deliberately obstructive to the proceedings, the Court could order that the party pay a contribution towards the other party’s costs. This is known as litigation misconduct.
It is important for parties to understand that raising a conduct argument should only be done in instances where the misconduct is serious. The repercussions of raising conduct without the appropriate level of seriousness or evidential support could result in the claimant being penalised and ordered to pay the other side’s costs, as well as having to pay their own additional costs.