Why the ‘blame game’ has little say in the financial outcome of a divorce
When a marriage or civil partnership ends, financial remedy proceedings determine how assets, income and pensions are divided.
How that division is achieved is not always straightforward. It depends on a range of factors, including earning capacity, housing needs, pension provision, the standard of living enjoyed during the relationship and any dependent children.
What is not usually considered by the courts is bad behaviour or conduct. By this, I mean situations where a spouse has, for example, persistently provoked arguments, been unfaithful, or withdrawn from emotional or physical engagement. While the ‘innocent’ party may assume this should entitle them to a greater share of the assets, in reality it is unlikely to influence the outcome.
Why courts don’t punish bad behaviour
The court’s role is to achieve a fair financial settlement. Its remit does not extend to punishing a spouse for bad behaviour during the marriage or after separation by awarding the other party a greater share of the assets as compensation.
If this appears unjust, and to some it may, the court is legally bound to consider the factors set out in section 25 of the Matrimonial Causes Act 1973 when making financial orders. These do not include matters such as infidelity, unexplained absences, or disagreements over parenting styles.
The Form E financial statement that both parties have to complete can give a slightly misleading impression, as it includes sections on conduct and bad behaviour.
Some clients understandably wish to record all the ill-treatment they feel they have suffered. However, in most cases, doing so will not affect the outcome but may well increase both the duration and cost of proceedings.
How raising allegations can cause delays
Raising allegations of conduct sets additional processes in motion. These issues need to be dealt with before financial negotiations can properly move forward. The court needs to decide if the conduct is serious enough to consider, or if it should be disregarded. This usually requires detailed statements from both parties, prepared with legal assistance and submitted for consideration. Preparing evidence can take many hours, and securing a hearing may take months, inevitably causing delays and further legal fees.
There are, of course, circumstances in which conduct will be relevant, although the legal threshold is high. This is most often found where the behaviour has had a direct financial impact. Examples include when a spouse is hiding assets, not disclosing their true financial position, or deliberately or recklessly shedding assets which would otherwise have formed part of the matrimonial pot, for example through gambling, hiding funds or indiscriminately spending. Additionally, the court can take into account misconduct such as serious violence or criminal behaviour, where it would clearly be unfair to disregard them.
Even in these situations, however, the court’s focus remains on financial fairness rather than moral judgment; findings of conduct are most likely to be made where there is a clear financial consequence.
What to do if your spouse has behaved badly
So, what should you do if you feel strongly that your spouse has behaved badly? However compelling the emotions may be, it is important to take a pragmatic approach. Is pursuing a conduct or behaviour argument worth the additional stress, delay, and cost? In some cases, the answer will be yes, but for most, it will not. Weak conduct arguments can sometimes do more harm than good.
An experienced divorce lawyer will provide clear and candid advice on whether a conduct or behaviour-based argument is likely to succeed. Sometimes, as difficult as it may be, the most effective course is to focus on achieving a fair and efficient resolution to end financial ties, rather than seeking to redress personal grievances.
Author: Lisa Reeve, Registered Foreign Lawyer, The Family Law Company.
