Divorce law : conduct – when can it be considered?

There is often a huge amount of anger and hurt involved when couples get divorced. It usually centres around how you and your ex-partner have behaved towards each other – which is to be expected, as more often than not it is a factor, if not the deciding factor, in the breakdown of your marriage. It often comes as a shock to clients then, to learn that in all but the most exceptional cases, conduct is not something the judge will take into account in deciding your financial affairs.  It’s not because the judge doesn’t care about you or why your marriage has broken down, it’s because it’s irrelevant to the law in your case and he is there to apply divorce law.

Common hearsay would have you believe that the guilty party, the person responsible for the break-up of the marriage, will receive less because that’s right and fair. This isn’t how the courts will view it. The legal starting point in financial proceedings is the sharing principle. While the Matrimonial Causes Act (1973) makes provision for conduct to be considered as a reason to deviate from this, in practice, the courts would only do so where conduct is gross and obvious – that is, the kind of shocking behaviour that might make tabloid headlines. Colloquially we’d call it the gasp factor: he did what?

It doesn’t include the kind of conduct that regularly causes the breakdown of marriage, such as adultery or violence. Damaging as that may be, it’s rarely conduct that would be sufficient to affect the financial outcome as laid out in the Divorce Law Act.

It’s an important point to grasp, because if you really do want to raise the issue of conduct, you need to tread carefully and understand the boundaries of what the court might consider. You do need to seek legal advice before embarking on this course of action. It will be a lengthy and therefore expensive process of investigating and substantiating each allegation, as much of the case would only be your word against your ex-partner’s. The resulting case will consume a good deal of time in court too (hence there are fundamental public policy reasons why the courts are so restrictive on how and when conduct will be considered). If you do decide to go ahead and raise the issue of conduct, it will not be an easy task.