Think carefully before making a conduct claim

Think carefully before making a conduct claim – Ian Walker

A recent case has emphasised the perils of claiming that your spouse’s conduct should have a bearing upon the divorce settlement.meeting

It is a commonly held belief that ‘bad conduct’ on the part of your spouse should be ‘punished’ by them receiving a smaller financial settlement on divorce. A typical example would be where the spouse has committed adultery – the argument goes that if they were responsible for the breakdown of the marriage then they should not be entitled to their full share of the matrimonial assets.

However, whilst such an argument may have been true many years ago, it is certainly not true today, save in the most extreme cases.

The conduct of each of the parties is one of the factors that the court is required to take into account when deciding upon an appropriate divorce settlement. The way this works in practice is that the court will not normally look at the issue of conduct, unless it is raised by one of the parties.

However, conduct will only have a bearing if it “is such that it would in the opinion of the court be inequitable to disregard it”. In other words, only if the conduct was so bad that it would be unfair on the other party not to take it into account.

So what type of conduct is that bad?

 

Personal and financial misconduct

Well, there are essentially two possible types of ‘bad conduct’: personal misconduct and financial misconduct. Financial misconduct essentially comprises conduct that has a serious adverse effect upon the parties’ assets, so that there are less assets available to be divided between the parties. Personal misconduct is really every other type of ‘bad conduct’.

We will look at personal misconduct first. The Court of Appeal has said that to have a bearing upon the financial settlement such conduct must be ‘gross and obvious’, i.e. considerably more serious than the ‘usual’ ‘misconduct’ (including adultery) involved in the breakdown of many marriages.

The effect of this is that it is very rare for the court to find that personal misconduct should have a bearing upon the settlement. To give an idea, one of the few reported cases in which it was found to have a bearing was where the husband had attempted to murder the wife. On the other hand, in another case the husband was convicted of assaulting the wife, but that was not considered to be conduct so serious that it should be taken into account.

Financial misconduct, however, is more commonly taken into account, which comes as no surprise, as a party should obviously not suffer financially as a result of the other party depleting assets.

However, when most people think of ‘conduct’, they are thinking of the personal kind, and that is really the kind of conduct that should be considered very carefully before it is raised as an issue in a financial remedies claim on divorce.

As we have seen, personal misconduct as a factor in a financial settlement is very rare. But simply arguing the issue is likely to have an adverse effect: running up costs, increasing animosity and dragging the case out. In short, don’t raise the issue of personal conduct unless you are sure that there is a good chance that it will be taken into account.

 

Ruinous and recriminatory

An extreme example of the perils of raising conduct occurred in a recent case. The case is also a lesson in how not to conduct financial remedy proceedings generally.

In the case the wife raised conduct allegations against the husband, and the husband in turn claimed that the wife had a substantial interest in a family company, which should be taken into account as a matrimonial asset. Arguing over these issues meant that the case involved many hearings, over more than a year. And neither party succeeded with their argument. The end result was that the couple used up virtually all of their assets on legal costs, in what the judge described as “ruinous and recriminatory” proceedings.

The message is very clear: take the best advice you can before you raise conduct as an issue in financial remedy proceedings. We can provide the advice that you need. To find out more, and to get started with one of our specialist lawyers, click here.

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