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Divorce and Finances; Will conduct be taken into account by the Court when dividing matrimonial assets?

PLEASE NOTE: THIS ARTICLE IS OVER 1 MONTH OLD

dividing matrimonial assets

It is entirely understandable that when entering into financial proceedings people wish for the parties behaviour to be documented, certainly when you have been the victim of domestic abuse or adultery. Unfortunately, conduct is only considered in exceptional circumstances and where it would be deemed inequitable to disregard it.

When asking if conduct will be taken into account when dividing matrimonial assets, we are of course talking about when financial proceedings have been issued and for the court to potentially determine what your financial settlement will be.

It is important to always grasp the concept that Divorce and Finances are separate processes. For your Finances to be within the Court system then a Divorce Application must have been commenced.

Many people become entrenched in the reasons for the breakdown of the marriage in particular if the reason was adultery. The law has changed since 6 April 2022, where a No-Fault Divorce came in and therefore it is no longer possible to put down reasons for the Divorce except for the irretrievable breakdown of the marriage.

Unfortunately, a spouse’s bad behaviour or immoral actions are not likely to have an impact on the Financial Settlement. The Judge’s role is not to serve justice it is to divide finances in the fairest way possible giving consideration to the full financial circumstances.

It is important to manage your expectations and a sound concept to understand is that there are no winners when it comes to financial proceedings and should your matter be decided by a Judge then a good and fair settlement is one that leaves both parties feeling equally disappointed.

What is Conduct?

Conduct is the manner in which you behave. This can mean the conduct of you and your spouse during the marriage. Conduct can also be during financial proceedings. The main focus is however on the conduct during the marriage.

Section 25 of the Matrimonial Causes Act 1973 sets out that the Court shall have particular regard to the conduct of each of the parties, if that conduct is such that it would in the opinion of the Court be inequitable to disregard it.

It has to be extreme and conduct cases are quite exceptional. For conduct to be considered a Judge must consider it inequitable to disregard it. It must be gross to begin with.

When has Conduct been taken into account?

To give an idea what has constituted exceptional circumstances we can look at case law. There must be a gasp factor.

  • Jones v Jones allowed a conduct claim as the husband had attacked the wife with a razor blade causing life changing injuries, which impacted her ability to work.
  • FRB v DCA 2020 considered a conduct claim where there was a revelation that the wife may have deceived the husband as to the revelation that the husband was not their child’s biological father. However, this claim failed as the husband’s litigation conduct was factored in as he gave severely deficient disclosure.
  • H v H 2005 the husband attempted to murder his wife in front of their children. He was sentenced to 12 years imprisonment. The wife was unable to work since the incident. It would have been inequitable to disregard this conduct.
  • H v H 1994 the husband attempted to rape the wife and he seriously assaulted her. He was imprisoned too.

How will a finding of conduct impact on the division of assets?

If the court finds that there is a successful conduct argument, and it has to be considered because it was so exceptional that it would be inequitable to disregard it then this does not mean that the spouse who committed the conduct will not receive anything.

Simply it means there can be a departure from equality. The courts starting point is equality 50:50 then with a finding of conduct that balance may shift in favour of the spouse who was the victim of their spouse’s conduct during the marriage.

A departure from equality depends on the available marital assets and whether there are enough assets to meet the reasonable needs of the parties. If there are insufficient assets to meet the needs of the parties and there has been a finding of conduct then it may be that the conduct victim is awarded more of the assets.

Conduct during Financial Proceedings/Litigation Conduct

If your spouse’s conduct during financial proceedings has been so gross that it would be inequitable to disregard it, then this must be brough to the attention of the court.

If your spouse has failed to provide full disclosure for example or you are able to demonstrate that they have depleted assets deliberately or fritted away assets to avoid them going to the other party, then this could be reflected in any financial settlement should the Judge believe it constituted conduct. This is known as litigation conduct.

Should the Court find a conduct case, then it also weakens the credibility of your spouse.

When does conduct get mentioned?

You will tell your lawyer everything, however not all of that information will be provided to the Court. Should your lawyer advise you to do so then your first opportunity to formally address conduct is in your Form E – Statement of Financial Information.

Should you instruct Andrew Isaacs Law, you will be advised whether you should include the personal conduct you wish to raise and if our lawyers feel a Judge would see the conduct as extreme and it could be inequitable to disregard it.

If your matter proceeds to a Final Hearing, then you will be directed to produce a Section 25 Statement. A Section 25 Statement is a narrative statement setting out each parties case and the factors they wish to rely on. Therefore, if you wish to rely on conduct then you would set it out in this statement. It may be that your expectations have been managed that a Judge is unlikely to find conduct and therefore it impacts on your financial settlement, however you are able to set out your spouse’s behaviour to the Court and you feel they have a full picture.

How can Andrew Isaacs Law help?

Andrew Isaacs Law are experts in family law and are able to offer fixed fee appointments.

At one of those appointments, you can receive honest, tailored advice with no obligation to instruct us. If you believe you have circumstances during the marriage that constitute conduct, we can discuss those circumstances and give you honest and supportive advice and advise you of the next steps. We can also guide you through the entire process of your divorce and financial proceedings.

We will always seek to help you resolve matters without court proceedings.

Please do not hesitate to contact us on 01302 349 480.

Roxanne Woolliams – Solicitor

17.08.2022

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