Within a marriage or civil partnership, the concept of bad behaviour can cover a multitude of activities, from leaving the top off the toothpaste to serious or criminal activities.
Mr Kiran Solanki, a Solicitor and head of family and matrimonial department with Crane and Walton, North West Leicestershire says ‘Many expect that if their spouse has had an extra-marital relationship or in some way behaved badly causing the marriage to end, they will be financially penalised when it comes to dividing the marital assets. That is not normally the case, so it is important to talk to your solicitor about your specific circumstances.’
What misconduct is taken into account?
In certain circumstances the courts can consider the misconduct or behaviour of a spouse, provided it would be ‘inequitable to disregard’. What is inequitable to disregard is a question for the courts based on the individual facts of a case. Such conduct must be ‘gross and obvious’ or what one judge described as conduct that has the ‘gasp’ factor. This is a very high threshold to reach.
Conduct that will be taken into account by a court can be divided into two categories; personal or financial.
Cases where personal conduct has crossed the threshold include illegal activities such as incest, marital rape, paedophilia, bigamy, and significant domestic violence such as stabbing or shooting a spouse. Most of the personal conduct cases that fulfilled the criteria involved attempted murder or grievous bodily harm upon a spouse, or in one case hiring a contract killer to murder their spouse. They are very much at the extreme of bad behaviour. Thus such cases are very rare.
The type of behaviour which is usually cited as grounds for an unreasonable behaviour divorce petition, such as lack of communication or sympathy, drug abuse, drinking to excess, or failing to engage in normal family life will rarely be a sufficient basis for the court to take into account in dividing the financial assets.
The court can consider financial mismanagement by a spouse that has caused significant detriment to the marriage. There are several types of financial conduct that the court has considered relevant which include gambling, failing to pay tax bills, fraud and transferring assets for little or no consideration in an attempt to prevent their spouse from gaining any benefit.
If your spouse has gambled your life savings, borrowed unreasonably and excessively against the family home or has been dissipating the marital assets then the court may well reduce their claim over what assets are left.
Financial conduct is more likely to be taken into account by the court when dividing the assets. Although this is still not common, when it is permitted the court tends to calculate a financial allowance for what it believes the offending spouse has wasted or mismanaged financially. This is a much easier assessment for the courts than trying to come up with a figure for someone’s personal conduct.
Bad behaviour, whether of financial or personal conduct does not commonly impact a divorce financial settlement. However, when it does it will have a significant detriment to the offending spouse.
If you believe your spouse’s behaviour is so serious that it needs to be taken into account, then it is important to take early legal advice as it can be difficult to raise this at a later stage.
However, please be aware that behaviour is just one of several factors the Court has to take into account in dividing the family assets. It is important you take legal advice.