Can your bad behaviour affect your Financial Settlement in a Divorce?
Bad Behaviour and Financial Settlement in a Divorce
Although the Divorce Law was reformed in April 2022 so that neither party could be ‘blamed’ for a marriage breaking down, many people are left feeling aggrieved when their marriage breaks down at the lack of accountability for what they consider to have been ‘bad’ behaviour.
Unfortunately, it is a common misconception that an individual’s general behaviour will affect the outcome in a divorce. Many assume their partner’s affair, emotional neglect, or other bad behaviour will result in them securing a more favourable settlement when it comes to considering how the matrimonial assets are going to be divided.
Whilst the above is true, it is not always the case. Conduct is one of the factors the Court can take into account when determining a settlement. The caveat is that conduct is only seen as relevant where it is so serious it would be unfair for the Court to ignore it.
There are generally two types of serious conduct the Court will consider: financial and personal misconduct.
Personal Misconduct (or bad behaviour)
This is the most comment type of ‘conduct’ raised by individuals. In practice, it rarely influences the settlement.
Whilst many people believe adultery and unreasonable behaviour should result in a more favourable settlement, these factors tend not to have any real bearing on the financial aspect of a divorce. For the Court to consider personal misconduct to be relevant, it has to be exceptionally serious. Even in cases of extreme personal misconduct, there is no guarantee that the Court will penalise the ‘guilty’ party financially.
Domestic abuse is occasionally considered in settlements but is often dependent on whether the contact has negatively impacted a party’s financial position or on the party’s ability to generate an income and support themselves. In the case of H v H, violent conduct was relevant in financial proceedings because the husband’s attack on his wife was so serious it affected her earning capacity. However, each case will be decided on its own facts.
This form of conduct is more likely to be considered by the Court.
Financial misconduct is where one party recklessly or purposefully dissipates assets prior to the financial remedy proceedings; thereby reducing the matrimonial “pot” and adversely affecting possible settlement.
Examples of this include gambling or transferring assets offshore with a view to defeating the other party’s financial claim. In financial misconduct proceedings, the remedy often adopted by the Court is to ‘add back’ the money used. However, the Court will not automatically grant this.
Conduct during the actual proceedings can also be considered. Should either party fail to cooperate with the Court timetable and, act in a way that is deliberately obstructive to the proceedings, the Court could consider making a wasted costs order against them.
It is important for parties to understand that raising a conduct argument should only be done in circumstances where the misconduct is serious. The consequences of raising conduct without the appropriate level of seriousness or evidential support could result in the Applicant being penalised and ordered to pay the other side’s costs, as well as having to pay their own additional costs.
It is important to have access to expert legal advice to help you understand the relevance of any arguments you wish to put forward during your divorce process and in order to better understand the outcomes you are likely to achieve.