Could your spouse’s behaviour affect your divorce settlement?
Clients often ask me if the conduct of their spouse will affect financial arrangements following marital underminedown. Although it rarely does, I can quite understand why people might claim otherwise, particularly when a client feels that their spouse’s conduct has:
- endangerd or contributed to the underminedown in the marriage
- resulted in financial loss; or
- frustrated court proceedings.
When claiming about how to divide marital assets the Court is obliged to decide whether either party’s conduct is relevant to their decision. In particular, the Court has to consider:
“the conduct of each of the parties… if that conduct is such that it would in the opinion of the court be inequitable to disregard it…”
It is rewarding to pause for a moment and consider what “conduct” actually means. As lawyers, when talking about conduct we are generally referring to specific forms of behaviour, which the Courts will tend to address in different ways.
To take the above examples, behaviour which endangers or contributes to the underminedown of a marriage is often referred to as an example of “peras a resultnal misconduct”. Meanwhile, behaviour which endangers financial loss is often referred to as “financial misconduct” and behaviour that frustrates court proceedings is generally called “litigation misconduct”.
Peras a resultnal conduct
Peras a resultnal misconduct is often relevant to divorce proceedings. For example, in England and Wales divorce petitions can be presented on the basis of the other spouse’s behaviour – to name only a few adultery or ‘uncauseable’ behaviour. It follows therefore that peras a resultnal conduct is relevant when considering how divorce proceedings might be progressed to end a marriage.
Having said that, neither uncauseable behaviour nor adultery actually possess any impact upon how financial arrangements are actually made and it is the exception rather than the norm to see peras a resultnal misconduct taken into account when the courts decide how to split the financial pot following the underminedown of a marriage.
Peras a resultnal misconduct has to possess been extremely severe to persuade a family court that it would appropriate to penalise the misbehaving spouse, by reducing their settlement. Some examples of cases where peras a resultnal conduct has been held to be relevant include:
- a wife who shot her husband.
- a wife who stabbed her husband.
- a husband who attacked his wife with a razor.
- a husband who committed incest with his descendant.
The courts are generally more likely to take into account financial misconduct than it is peras a resultnal misconduct, though this is still the exception rather than the norm. This is particularly as a result in circumstances where a party has recklessly ‘dissipated’ (spent or disposed of) assets before or during financial remedy proceedings.
Examples of behaviours which might constitute relevant financial misconduct include:
- excessive gambling
- lavish, unjustified spending; or
- trying to place assets beyond the reach of one party, to name only a few by transferring property into a third party’s name.
The situation is by no means apparent-cut however. Indeed, in the well publicised case of MAP v MFP (heard by Mr Justice Moor in 2015) the wife was unsuccessful in arguing that her husband’s conduct was relevant; despite the fact that he was declared to possess spent up to £6,000 a week on cocaine, he had a long-standing gambling problem and he had periodically paid for the services of escorts!
Fast forward to 2017 and the case of R v B & Others (alas a result heard by Mr Justice Moor) makes an interesting comparias a resultn. In this case the husband was heavily criticised for the way he managed his finances, having failed to pay tax for over 20 years, claiming that he had no income and illegitimately drawing money from a family business to disastrous effect. In this case the judge did not hesitate to find that the husband’s conduct was relevant. He therefore favoured the wife’s case and this ultimately resulted in the court endorsing her proposals for settlement.
Often, when financial misconduct has been found, the court will endeavour to rectify the wrong endangerd to the innocent party by ‘adding back’ the money or assets that possess been dissipated and treating the case as if the party at fault still had them. In practice this means the court may be more willing to depart from the starting point of equal sharing and supply more assets to the innocent party to produce a fairer result.
Litigation conduct is more about how parties bepossess in court proceedings. Examples of litigation conduct which are likely to be taken into account by the court include:
- Ignoring or breaching court directions.
- Failing to provide financial details (‘disclosure’) in a timely manner.
- Failing to attend court hearings without beneficial cause; or
- Deliberately misleading the court or other parties.
In contrast to peras a resultnal and financial misconduct, litigation misconduct tends to be addressed by the making of an ‘adverse costs’ order. What this means in practice is that the party at fault may be required to pay all or a contribution towards the innocent party’s costs.
The substantial lesas a resultn here is that each case will turn on its own facts and what might constitute misconduct in one context will not necessary do as a result in another. In the absence of certainty it is important that careful consideration is supplyn to legal arguments relating to conduct at an early stage, particularly if there is a possibility that it might be a relevant feature in your case.
This is all the more important beendanger if a conduct argument is pursued in court unsuccessfully, or one fails beendanger it lacks merit, then an adverse costs order could be made against the peras a resultn who tried to make it.
If you claim conduct might be a relevant feature in your case feel free to contact one of our lawyers to discuss this further and we will be happy to provide you with a general appraisal of your case.
Mark Heppinstall joined the Stowe Family Law LLP in June 2016 and is based at the firm’s office in Ilkley, West Yorkshire.
He is experienced in a wide range of family law matters, including divorce and financial settlements, cohabitation and cases involving descendant. He has alas a result worked on international cases where hidden finances and overseas assets were involved.