Divorce: Solicitor explains how much your conduct in marriage and during divorce could impact outcome

An individual’s behaviour both during a marriage, and throughout the divorce proceedings, is always considered by the parties, but may not always impact the outcome as much as the other party hopes, Hannah explained.

“When determining the distribution of the parties finances within the context of financial remedy proceedings and specifically the issue of “conduct” i.e. bad or other behaviour, the legislation is clear, that in accordance with Section 25(g) of the Matrimonial Causes Act 1973, the court shall have 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’,” she said.

“There is no statutory definition of ‘conduct’, but case law has helped with identifying several categories of conduct, such as ‘gross and obvious personal misconduct’, ‘financial conduct’ and ‘litigation misconduct’,” says Hannah.

“If this issue is stated to arise, conduct must be pleaded at the earliest opportunity in a party’s Form E and the court should determine how to manage this particular issue at the First Appointment hearing (the ‘first’ court hearing listed after an application for financial remedy orders is made).”

Bad behaviour and ‘hiding’ financial information

Conduct is a factor that the court can consider upon the breakdown of the marriage, but the reality is that the behaviour of a party will only be taken into account in exceptional circumstances. Hannah said leading authorities had established a very high threshold which needs to be met in order for this to be successfully relied upon.

“Accordingly, if one party has behaved very badly throughout the course of the marriage, there is no automatic entitlement for the well-behaved party to receive a larger share of the financial assets,” she said. “Understandably, this can cause a great amount of frustration and annoyance to clients, the majority of whom are unaware of the high threshold which exists.

“The most common type of conduct which I often encounter is that of ‘litigation conduct’ where a party fails to provide full and frank disclosure of their overall financial position, breaches their obligations under the terms of a Court Order or fails to negotiate.

“In my experience, litigation misconduct has been dealt with by way of a Penal notice being attached to a court order and an Order that the badly behaved party pays the other’s costs. The ultimate sanction for not complying with a Penal Notice, is an application for committal to prison,” Hannah continued.

“Therefore, simply failing to disclose full financial details can be regarded as misconduct in a hearing, but a party relying on previous behaviour and poor conduct to guarantee them a better settlement are often disappointed when this does not happen.

Expert advice in family law

Hannah Craven is a Solicitor at Silk Family Law  For help and advice call 0191 500 0777