Can misconduct affect a financial settlement on divorce?

Can a spouse’s behaviour affect a financial settlement on divorce? While the courts won’t consider who was responsible for the breakdown of a marriage, there are circumstances in which misconduct can influence the outcome of financial remedy proceedings.

When dealing with finances following a divorce, the court must consider a range of factors before deciding what would be a fair financial outcome. These include consideration of the parties’ respective income and assets, their financial needs, the length of the marriage, their ages, contributions and the needs of any children. One of the factors the court can be invited to consider is the conduct (behaviour) of either of the parties.

This does not mean that the court will look to investigate who was at fault for the breakdown of the marriage. Indeed, the no fault divorce regime introduced in April 2023 eliminates the need for any blame to be attributed to either party where a formal divorce is sought.

However, some marriages do breakdown as a result of poor behaviour on one or both parts and when that happens spouses often seek for such poor behaviour to be addressed in context of the Financial Remedy discussions and proceedings.

While there is pressure on the Government to reform the way in which poor behaviour in divorce is looked at in financial remedy cases , “conduct” will generally only affect a financial settlement where the alleged behaviour is sufficiently serious that it would be completely unfair for the court to ignore it. The legal threshold is set exceptionally high and in most cases any kind of conduct pleaded will not reach it.

What sort of behaviour can amount to conduct?

There are different ways in which behaviour can become relevant to financial proceedings and these can include:

• exceptionally serious “gross and obvious” personal behaviour;
• deliberately or recklessly disposing of or wasting assets which would otherwise have been available to share;
• misconduct during the course of the court proceedings, which may have consequences when the court considers legal costs; and
• failure to provide proper financial disclosure, which can sometimes result in the court drawing adverse conclusions about undisclosed assets.

Where personal conduct is relied upon, the behaviour must be at a high or exceptional level with financial consequences arising as a direct result.

Thus, the existence of domestic abuse or coercive and controlling behaviour in itself does not automatically mean that the court will reflect this in a financial settlement and each outcome will depend upon the particular circumstances of the case.

In broad terms, a spouse relying upon personal conduct will need to establish:

1. What happened: there must be evidence proving the alleged behaviour.
2. That it is sufficiently serious: the behaviour must meet the high legal threshold for conduct.
3. A financial impact: there needs to be an identifiable financial consequence, although it may not always be possible to calculate this precisely.
4. A connection between the two: the financial consequences relied upon must have been caused by the behaviour.

What happens if conduct is relevant to your case?

If you feel that conduct may be relevant, we will first identify precisely what behaviour is being relied upon and why it may be relevant to the financial outcome.

We will then consider the evidence available to prove it and, importantly, evidence showing any financial consequences arising from it.

Your spouse will have an opportunity to respond to the allegation. If the facts remain disputed and the issue is relevant to the outcome, then the family court may need to determine what happened based upon the evidence presented.

Even where conduct is established, there is no automatic financial penalty or fixed adjustment. The judge must consider the conduct alongside all the other relevant circumstances before deciding what overall financial order is fair.

Pending any change to the current law, a “conduct” case is the exception rather than the rule in financial remedy cases no matter how upsetting or unreasonable the poor behaviour actually experienced may be.

If you believe that poor behaviour may be financially relevant to your circumstances, please tell us what happened, when it happened, what evidence is available and what financial consequences you believe resulted from it. We can then advise you as to whether conduct should properly form part of your financial remedy case. Please get in touch with our experienced team of family law professionals.

Our Legal 500 and Chambers-rated Family law department listen to your needs sensitively and fairly, providing clear, supportive and careful guidance to deliver the best outcome for you.