There is a common divorce myth that adultery will have financial consequences on the capital settlement between a couple. Is adultery considered relevant by divorce courts?
This article is part of a series of articles that aim to debunk the top 10 myths and misconceptions around divorce and finances that we have come across with our clients.
So after all the publicity about the clinch in the corridor, we are told that Matt Hancock and his married adviser Gina Coladangelo have left their respective relationships and intend to make a go of their “committed relationship”. Where does their publicly exposed adultery leave both of them when the inevitable divorces occur?
Conduct by a spouse is very rarely relevant
The case of Matt Hancock and Gina Coladangelo is a very classic illustration of the fact that conduct by a spouse in a marriage is very rarely relevant. Most objective bystanders would imagine that there would be some financial consequence of an adulterous affair coming to light particularly in such public circumstances. This is a myth. If we take the case of Gina who has been married to Oliver Tress since 2009, with 3 children of their marriage, the fact that she has had an affair and now apparently left Oliver to live with Matt Hancock is likely to be largely irrelevant to the resolution of financial matters between them.
Adultery does not affect the capital settlement
When a couple separates the first priority is with the children of the family. In a wealthy situation such as that of Oliver and Gina, there will clearly be sufficient resources for the children to be provided for. Gina’s conduct will not affect the capital settlement between the couple. The extent of provision for her will depend on their respective capital and income positions and the financial history of their relationship.
Their situation is legally interesting in that Oliver Tress will have an argument that his successful business Oliver Bonas should not be divisible equally with Gina as he founded it many years before they married and may therefore be regarded as non matrimonial property and retained by him. The business started when he was at university but in recent years has grown very rapidly indeed.
In any divorce, Gina may argue that much of this expansion is due to her involvement in the business as the marketing and communications director. She has also had a successful career in her own right before taking the fateful appointment at the Department of Health to work with Matt Hancock. So Gina’s possible entitlement to any of Oliver Bonas will depend on the extent to which a court decides that Oliver Bonas is non matrimonial. Given its rapid expansion and Gina’s involvement, it will be unlikely to be regarded as fully non matrimonial. The court would then need to weigh up the matrimonial element of Oliver Bonas with any wealth that she has accumulated in her own right through her own career. Their marriage is a relatively short one so again this is likely to assist Oliver in any arguments to retain the Oliver Bonas business. The fact that will surprise many people is that the only thing that won’t be legally relevant is her affair with Matt Hancock.
Likewise, the Hancock divorce settlement will be dealt with largely without Matt’s conduct being relevant. It is the children’s needs and the financial resources of each party that will be taken into account, not the very embarrassing public conduct. Matt Hancock will not be financially punished by a divorce court for his conduct regardless of public opinion on this matter.
Adultery is not considered relevant by divorce courts
Sometimes, when faced with the discovery of an affair or other breach of trust, the spouse making that discovery can think they would be entitled to “take their spouse to the cleaners” due to their behaviour. It can be difficult for them to learn that the role of the divorce court in the many very difficult situations it is asked to deal with is to try to divide the finances as fairly as possible without regard to the behaviour of the spouses. This rule that conduct is not relevant is very rarely breached indeed – examples, where conduct have been taken into account, have been usually due to serious criminal offences such as child abuse or fraud involving the spouses. The sort of behaviour we all witnessed by virtue of a CCTV film won’t amount to that!
To see the full series of our Top 10 divorce finance myths, please click here.