Divorce and the process of resolving the financial settlement, can be an incredibly difficult and emotional time for many parties. The reality, however, is often different from what people expect. The English legal system has moved significantly towards a more pragmatic, less blame-focused approach to divorce. While this can feel frustrating when you’re dealing with the aftermath of hurtful behaviour, understanding how the law actually works is essential for managing your expectations and making informed decisions about your case.

Quite often one (or both) will feel very distressed or aggrieved by the conduct (behaviour) of the other party during the marriage, and wonder how and if it will be taken into account.

No fault divorce

As for divorce itself, since April 2022 there is no longer a requirement to detail reason(s) for divorce, in fact all an applicant needs to confirm is that the marriage has “irretrievably broken down”. This is due to the transition to ‘no fault divorce’, with a view of keeping separation more amicable and cost effective.

Financial remedy

This may leave you wondering how the court can take into account any ‘bad’ conduct during your marriage and divorce when dealing with the finances. The financial remedy process is separate from the divorce itself. While the divorce formally ends your marriage, the financial remedy proceedings determine how your matrimonial assets, income, pensions, and liabilities will be divided between you and your former spouse. This is often the more complex and contentious part of separation.

What does conduct mean?

The Matrimonial Causes Act 1973 (“MCA”) is still the primary legislation governing how finances are dealt with upon divorce. Section 25 of the MCA sets out the factors that the court take into account when deciding the financial settlement of the matrimonial assets.

One of those factors is :

(g) “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;”.

If you are in court proceedings to deal with the matrimonial finances, you may come across reference to this in your Form E, which is the primary form used to produce financial disclosure at the start of financial proceedings. You will have the opportunity to detail the other parties’ conduct; this is commonly known as running a “conduct argument”.

Running a conduct argument comes with a number or risks. It can involve increased costs to the person pursuing the argument as additional evidence may be required, and a hearing needed to determine whether the conduct happened. If that argument fails, a costs order can be made against the unsuccessful party.

What behaviour constitutes bad conduct?

There is a high threshold to meet and therefore those arguments must first be carefully considered with an experienced family solicitor if they are to be successful in court. The case law refers to conduct as needing to be so ‘obvious and gross’ that it cannot be ignored.

Most day-to-day disagreements will not suffice, and the conduct must have a financial consequence and the financial consequence must be measurable.

That is an important criteria that the courts have made very clear – there is no point in making allegations if there is no measurable loss and no other asset to set that loss against.  It should also be noted that in a case where parties are both in financial need, arguments as to conduct are unlikely to succeed and assets will be used to meet needs in first instance.

Very often a party will complain that the other has recklessly misspent family money. This may be by gambling or suchlike, but the courts are now mindful of the effects of addiction. It is often not enough in itself to show that money has been recklessly misspent to found a claim, that needs analysis. Common types include;

  • Dissipation of assets to reduce claim; i.e. possibly giving money and property away at an undervalue
  • Fraudulently signing documents raising money that the party uses – i.e. mortgage deeds, etc
  • Economic abuse by one party
  • Hiding important facts such as the true value of assets
  • Hiding assets (i.e. deliberate concealment of assets)

Poor conduct during a court case can also give rise to a conduct argument, for example if a party causes extra costs by failing to properly negotiate or comply with court directions, but that type of complaint falls under a different category and can be punished by a costs order being made.

What behaviours do not get taken into account when settling the finances?

  • Actions where there is no financial consequence;
  • Adultery would not be seen by the court as inequitable to disregard unless there are other financial factors involved, find out more here
  • Spending which in is line with the parties’ married lifestyle;

If you find yourself in this situation, keep a clear record of the behaviour and how that has affected you financially.

Key takeaways

  • The conduct must be financially linked.
  • The financial consequence must be capable of being evidenced.
  • There is a high threshold, so much so that the behaviour cannot be disregarded by the court. Day to day disagreement will not suffice.

We’re here when you’re ready

At FJG Solicitors, our Family Law team combines legal expertise with a compassionate, pragmatic approach. If you’re considering separation or divorce, we’re here to help you make informed decisions about your future.

Get in Touch

Harriet Salmon is a Solicitor in our Family Law team specialising in divorce & separation.

If you have any queries on the above subject, please do not hesitate to get in touch with Harriet on 01206 217503 or complete our online enquiry form.