19 Jul 2023
In almost every case I deal with I am asked to explain when does behaviour affect your divorce outcome and what behaviours the court might take into account when deciding how the assets are to be divided following a divorce.
What the court looks at broadly falls into three categories: non-financial conduct, financial conduct, and litigation conduct.
The court will never be concerned with who was to blame for the breakdown of the marriage or claims that one party has been unfaithful. For behaviour to be relevant in the court’s eyes there will need to be a financial consequence from the behaviour.
In the case of H v H (2005), the fact that the husband had been convicted of attempting to murder his wife did justify reducing the husband’s share of the assets. However, the Judge made it clear that it was not the family court’s job to punish the wrong doer. The assault had left the wife unable to work and therefore there was a tangible need to award her a larger share of the assets.
In the case of FRB v DCA (2020), the wife had allowed the husband to believe for eight years that he was the biological father of the son she had conceived during an affair. The commitment to the child by the husband both financially and emotionally, meant that the court looked at this as behaviour that they had to consider. However, the court did not reduce the wife’s share of the assets in the end but instead the wife’s conduct was set-off by the husband’s conduct in the proceedings in not providing satisfactory financial disclosure.
If a party can demonstrate that the other party has intentionally wasted, spent, or sold assets, then the court may add those assets back into the matrimonial pot. For the court to ‘add-back’ the dissipated monies though it must be satisfied that the dissipation was both ‘wanton’ and ‘reckless’. What constituted ‘wanton’ and ‘reckless’ was considered in the case of MAP v MFP (2015). In that case the husband had spent £250,000 on cocaine and prostitution after the parties had separated. The husband had serious problems with alcohol and drug dependency going back years into the marriage and had undergone several unsuccessful attempts at rehab. Despite these issues he had been the managing director of an extremely successful property development company. Perhaps surprisingly the Judge in that case had not been persuaded to add the money back into the matrimonial pot. The Judge’s reasoning was that the husband had not dissipated the monies in order to reduce the wife’s claim, he had done so because he could not prevent himself doing so. The Judge was of the opinion that it would not be right for the wife to have shared in the great financial success enjoyed by the husband, but not to share in the difficulties resulting from his alcohol and drug addiction.
In the case of DP v EP reported earlier this year, unbeknown to the husband, the wife had been siphoning off substantial assets belonging to the parties. A significant and unusual factor in this case was that, despite being a successful builder, the husband was illiterate and reliant upon the wife to take care of their finances. The Judge felt that this meant the wife owed the husband an increased duty of care which she had taken advantage of by fraudulently getting him to sign documents to buy and sell assets. The Judge concluded that the wife’s behaviour fell within the definition of ‘economic abuse’ as defined in the Domestic Abuse Act 2021. The way in which the Judge took the wife’s conduct into account was by awarding her only 47%, rather than 50% of the overall assets. It was important to the Judge though that he was satisfied that the wife could still meet her needs from that 47%. The implication being that had the wife needed 50% to meet her needs the Judge may have overlooked the conduct.
I would warn any reader though not to take the above as a licence to conduct themselves in the manner of the husband in MAP v MFP or the wife in DP v EP, because these cases turned on their own very specific facts and the outcome may be very different in another case.
Examples would include failing to provide full and frank financial details (‘disclosure’), being dishonest in the disclosure that is provided, or being dishonest in evidence. These issues will usually be dealt with by way of a Costs Order within the court proceedings. This means that although there is a general rule in divorce proceedings that each party pays their own costs i.e., solicitors, barristers, and experts fees, in cases where there has been significant litigation misconduct or material non-disclosure, the court may require the party at fault to pay all of, or a contribution towards, the other party’s costs.
In summary, “non-financial conduct” is rarely relevant and if it is to be relevant there must be a financial consequence of the conduct complained of. “Financial conduct” may well be relevant, but it depends on the individual circumstances. Litigation conduct will be relevant but is unlikely to be a factor in determining how the assets are divided, rather it will be dealt with when the court considers making an ‘order for costs’.
If you would like advice about whether a behaviour is likely to affect your divorce settlement, contact our family law team. Our specialist divorce lawyers can talk you through the divorce process and discuss any factors that might affect the outcome.