One of the questions that is frequently asked by clients is whether their partner’s bad behaviour can be taken into account when determining financial provision in divorce. Should they be awarded larger financial provision due to behaviour? Whilst a party may feel very strongly about this, it is a common misconception that the bad behaviour of one party will automatically influence the outcome of the financial proceedings.
There is a checklist under Section 25 of the Matrimonial Causes Act 1973 that judges consider when determining how assets should be split, and this checklist includes factors such as current financial needs, the age of each party and relevant physical and mental disabilities. Under Section 25(2)(g), conduct is a factor that can be taken into account if in the opinion of the court it would ‘be inequitable to disregard’ it.
Whilst there is clearly a provision in statute that courts are able to consider conduct it is important to understand that conduct is not usually taken into account in financial proceedings. The words ‘inequitable to disregard’ include allegations that lead to the “gasp factor”. In S v S, Judge Burton explained that conduct should have about it a “gasp factor” rather than inducing a “mere gulp”.
In order to qualify, conduct must be obvious and gross ‘so much that to order one party to support another whose conduct falls within this category is repugnant to anyone’s sense of justice’ (as determined by Lord Denning in Watchel v Watchel). Case law has provided examples where conduct has been accepted as relevant and these include instances such as the husband sexually assaulting his grandchildren, a wife’s connivance in the husband’s suicide attempts to gain assets and more seriously attempted murder. More commonly, there are cases involving financial misconduct which have been found to be a relevant consideration for the court and an example can be found in the case of Norris v Norris. In this case, the Husband’s spending far exceeded his income. The Husband’s conduct included spending money on £115,000 Ferrari motor car which Mr Justice Bennett found to be reckless.
It is important for parties to understand the types of conduct that will be a consideration for the court in order to avoid further expense. Judges enjoy a very wide discretion in this area so before considering making a claim it is always best to seek legal advice to understand how conduct can affect divorce settlements.
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