Many spouses feel betrayed or wronged following the breakdown of their marriage and wish for the spousal conduct to be reflected in the divorce and financial proceedings that follow. However, the law on divorce was reformed in April 2022 and the new no-fault divorce was introduced.
Where originally marriage breakdown was based on one of 5 fault-based ‘facts’, the updated law does not incorporate blame. Spouses are not required to provide a reason for the irretrievable breakdown of their marriage and consequently no one is ‘blamed’ for the divorce itself.
Aim of the new law
The aim of the new law is to avoid adding any further acrimony to the already difficult divorce and financial proceedings. Whilst some people wish for their spouse to be held to account or blamed for their conduct, blaming the other spouse does not assist the parties in reaching a settlement.
Spousal Conduct in courts today
Similarly, many spouses feel they should be compensated, or that their spouse should be responsible in financial proceedings for their behaviour. Much like the divorce procedure, spousal conduct is rarely considered by the Courts when it comes to financial proceedings.
The courts decision
Whilst conduct is listed as a factor for the Court to consider, it has been made clear from previous cases that the threshold for successfully arguing that behaviour should be taken into consideration is very high – it will only be taken into consideration if the Court considers that it would be inequitable to disregard it. In reality, this would involve extreme circumstances of behaviour, such as attempted murder or gross personal misconduct. Another example would be severe financial misconduct, where a spouse has intentionally or recklessly misappropriated or dissipated assets to defeat the financial claims of the other.
In the small minority of cases that pass the threshold for conduct, there is no hard and fast rule for how the finances will be divided – it is at the discretion of the Judge. Where there are sufficient assets to meet both spouses’ needs, the Court may justify departing from an equal split and rule in favour of the “innocent” spouse. Where there is insufficient assets to meet needs, and there is a successful argument for conduct, the Court may prioritise meeting the needs of the wronged spouse. It is a highly subjective decision and will consider all other factors of the case alongside conduct.
Summary
The Family Court does not aim to punish individuals for their behaviour during the marriage, their main focus is on dividing the finances fairly and meeting spouse’s needs. The decision on whether spousal conduct is significant enough to influence the overall settlement is highly subjective and we therefore recommend that you seek legal advice from our family team.