Posted by Charlotte Butler-Kitto on 15th October 2016

Unfortunately, marriages breakdown for a variety of reasons. Sometimes the spouses can agree that they have drifted apart, but often there is behaviour committed by one or both spouses that the other find unreasonable or upsetting. This can range from a party committing adultery, to domestic abuse, to financial misconduct, or simply to a breakdown in communication between the two spouses.

Unfortunately, in the UK it is still necessary to prove to the Court that the marriage has broken down. If parties are not able to or are not willing to wait two years from the date of separation to divorce, then the only options available to them to petition to divorce are the other party’s adultery or unreasonable behaviour. In relation to same sex couples, unreasonable behaviour is the only fact on which they can base a petition if within two years of separation. This is what is known as a fault based divorce, and can unfortunately increase the acrimony between the parties unnecessarily.

A question that we often get asked is whether this type of behaviour will affect any decision that the court might make regarding financial settlement. People often want to know in particular whether their dirty laundry will be aired in court in order to try and influence the court to make a more or less favourable decision on the division of the matrimonial finances.

The quick answer to these questions is that usually conduct by the other party is not relevant and is not considered by the court when determining a fair settlement of the matrimonial finances. There are however some caveats to this, although these caveats do apply in very rare circumstances.

The first potential exemption is financial misconduct. If one spouse can show that the other was financially incompetent, or has deliberately or recklessly dissipated the matrimonial finances or attempted to hide assets, then the court can take this into account when reaching a final decision if it would be fair to do so. This is not an absolute rule, for example the courts have held in a case that one party’s gambling should not be considered in the financial settlement because even though it dissipated the matrimonial assets, it was a part of that persons personality of which the other spouse was aware and the court recognised that people are by their nature flawed and if somebody wishes to rely on the earning capacity and the ability to bring in money of one’s spouse, if they have a personality which leads to for example gambling then the spouse will have to take that as well. The court’s rather pragmatic view is that people should be considered in the round and that spouses cannot cherry pick which of their former partner’s actions they wish the court to consider. However, where a party can show that the other party has deliberately tried to transfer assets so that they are not considered by the court or tried to dissipate assets or move them around to evade the jurisdiction of the court, then the court is likely to take a very dim view of this behaviour and will usually consider the behaviour and the ramifications of it when making a financial award. The court even has the power to undo certain transactions made by one spouse if they were made for the purposes of defeating the other’s matrimonial claim, and if those claims cannot be met unless the transaction is “undone”.

The next general category of exemptions is litigation misconduct. This is when one party has not complied with court rules or practice directions, or sometimes good practice protocol and codes, which has led to the other party having to have had increased cost in trying to bring matters to a conclusion. This can be the case if for example a party repeatedly fails to file disclosure when they are ordered to do so, or if a party makes repeated applications for something which the court has already dealt with. Another possibility would be where one spouse has deliberately tried to mislead the court or has acted in such a manner to be considered a vexatious litigant. In these kinds of cases, the court tends not to adjust the general financial award, but can penalise the party who is in default in costs. This means that they may be ordered to pay some or all of the other’s party’s costs that have been incurred as a result of the litigation misconduct.

The final exemption is in respect of conduct in the broader sense. This can include things like domestic abuse or child abuse, or criminal convictions. However, the court is very clear that these need to be very serious allegations in order for them to have an effect on the division of the matrimonial finances. Simply that one party has had an affair, or that one party has criminal convictions, would without aggravating factors usually not be sufficient for the court to determine that any adjustment should be made to financial provision. The court generally wishes to make a distinction between the parties’ financial positions and the emotions and actions between the parties during and after the breakdown of the marriage. Given that the court tries to keep such a tight lid on conduct of this kind, it is very rare that this is argued as a factor which should have an effect on the matrimonial finances. The test set down by the court is that such conduct must be so serious as to induce the “gasp factor”. This means that when learning of the conduct it must be so bad that an average person would gasp with astonishment. Usually this has to be so serious to be in the range of actions which include severe and prolonged domestic abuse, potential killing of a child or family member, serious sexual abuse of a child resulting in long term imprisonment and actions of this nature. It is therefore clear that only in the most exceptional of cases will general conduct be considered by the court when determining a fair financial settlement between the parties.

Whilst some separating spouses do find this difficult, as they feel they ought to be compensated for the bad behaviour of the other party, it does help to focus the party’s minds on the practicalities of moving forward financially rather than getting bogged down in the issues surrounding behaviour. The very fact of the marital breakdown means that the parties usually have complaints about one another and each other’s actions, and if the court acts as a forum to air such complaints then all this would do would be to increase the animosity between the parties and bog the court down in long statements of behaviour that in fact have no impact on the parties’ financial positions. If one party’s behaviour is a real problem, for example in domestic abuse cases, then the court can be engaged in a separate matter regarding that domestic abuse and it does not need to feed into the financial proceedings. Similarly, if one party has acted in a way that is not appropriate toward the children, then this can be raised should children proceedings be necessary before the court. Both of these types of proceedings are completely separate from financial proceedings. The court’s view is that in the large majority of cases what it should be asked to determine is a matter of funds, needs, income, assets, and pensions. This in itself can be a difficult task. Therefore, the courts actions in determining the issues before it is to limit those issues to ones strictly necessary when considering the finances. The other issue regarding the emotional breakup of the marriage are best dealt with informally, possibly by way of discussions between the parties and the passing of time, with the other powers of the court being available if necessary under proceedings entirely separate to those regarding the matrimonial finances.

Here at The Family Law Company we have teams in both our Exeter and Plymouth offices dedicated to determining issues surrounding matrimonial separation and financial provision. I also represent clients where there are aspects of children proceedings or potentially domestic abuse proceedings that need to roll alongside financial proceedings in order to ensure that the client’s needs are met and that all of the issues are before the appropriate court. Being able to offer such a holistic service is the product of being a part of such a niche firm where we can have national leaders in specific areas of family law and we can also offer our clients a variety of options using the number of different types of proceedings available in order to tailor that to each client’s specific case and needs. We also have a thriving Legal Aid practice, in order to offer assistance to those members of society who require it but may not have the funds up front in order to bring proceedings. Being able to offer advice on the various aspect of family law, and also offer Legal Aid to those clients who are so entitled, means that we have all the tools necessary to assist our client’s in coming to terms with a marital breakdown, accessing the services and provisions required to sort out the issues and the fallout from the breakdown of that relationship and to move on towards  a future that is brighter for themselves and for their families.

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