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Men (and women) behaving badly
The breakdown of a relationship is a complex process and there are many reasons why people split up. One or both parties might have been unfaithful. Differing attitudes to money, debt and expenditure, can also play a role in bringing tension into a relationship. When there are issues like this, there is a potential for blame to be apportioned. Looking into that situation from the outside, the well-meaning observer – maybe a friend or family member – might reach their own conclusions about who was at fault. For the couple at the centre of the process, there can be a real sense of grievance about the end of the relationship. But what do the courts do when faced with a situation where one or both parties are said to have misbehaved?
First of all, there is the divorce or civil partnership dissolution process. In order to obtain a divorce or dissolution without having to wait for at least two years to pass after separating, a person has to allege either adultery (only available to married couples) or unreasonable behaviour. This is a fairly unwelcome addition to the process and many in the family law world, including the family law organisation Resolution, feel that a no fault divorce/dissolution should be introduced without the need for a two-year wait.
In practice, “allegations” of unreasonable behaviour are usually restricted to the minimum level required in order to satisfy the court that a divorce or dissolution is justified. In adultery cases, the name of the “other man” or “other woman” is almost never mentioned and the court rules positively discourage naming a third party. In both types of case, the couple involved will frequently pre-agree the content of the petition in an attempt to keep the temperature down and divorce petitions are rarely contested. The days when the courts had routinely to adjudicate on lurid accounts of marital misconduct are thankfully long gone.
Clients will often ask whether the reason for the divorce or dissolution will make any difference to the financial settlement. While divorces and dissolutions are frequently based on allegations of fault, these allegations almost never make any difference to the outcome. In some countries, the fact that a person has committed adultery will reduce their entitlement to maintenance and/or a share in the family wealth. This is not the case in this country.
When we say that bad behaviour or “conduct” almost never makes a difference to the financial settlement, we mean that occasionally, it does. Before we look at some cases where conduct has made a difference, we should emphasise that the courts are very reluctant to accept arguments of this nature. Judges are not there to give a moral view as to how someone has behaved during a relationship. They are there to apply the law and bring about a fair and principled outcome. The introduction of “conduct” arguments will almost inevitably raise the level of acrimony, reduce the likelihood of the parties agreeing the financial settlement and thereby increase costs.
The legislation states that conduct should be taken into account where it would be “inequitable to disregard”. An influential 1973 case, Wachtel v Wachtel stated that conduct has to be “both obvious and gross” before it will make a difference. Judges have also talked about a “gasp factor” when considering the threshold of bad behaviour to be reached before the “guilty” party is punished in financial terms. Historic examples have included:
- a wife who shot her husband
- a husband who injured his wife with a razor blade so seriously that she could no longer work
- a husband who committed incest with the children of the family
- a husband who attacked the wife so seriously that he was imprisoned for attempted murder
- a wife who drugged her husband and then put a bag over his head
The actual financial difference attributable to this behaviour is difficult to tease out because the overall outcome will depend on a range of other factors that the court has to consider. However, the discretion to change the financial outcome because of one party’s behaviour is exercised rarely and only in the most shocking of cases.
We have talked about situations where bad behaviour is so offensive that it will change the outcome of a case even if the behaviour has no direct financial consequences. However, there are cases where the bad behaviour complained of is of a financial nature. These types of cases are more common than the “gasp factor” cases we have looked at already. One famous example was Heather Mills-McCartney’s overspending following her separation from Sir Paul. There have been other cases where a party has lost money through recreational gambling or needless and extravagant expenditure, particularly where it can be shown that money has been spent with the aim of reducing the family’s wealth. In situations like this, the court can pretend that the guilty party still has the money when working out a fair division of assets. This is sometimes known as reattribution or adding-back.
For example, Mr and Mrs X had a combined fortune of £2m. Having been married for 25 years, the answer would usually be that they should each get £1m. However, after separation Mr X spent £200,000 on a lavish holiday for himself and his friends including the hire of a private jet and time on a private island. Rather than simply dividing the remaining £1.8m down the middle, leaving each party with £900,000 each, the court might well pretend that Mr X still had his £200,000, giving Mrs X £1m and Mr X £800,000.
In cases of alleged reckless spending the court should only consider making adjustments where there is clear evidence of “dissipation”. The court will not be interested in an argument that a person should be penalised for shopping at Waitrose when they ought to have gone to Aldi. They will also not want to pick over tiny examples of perceived extravagance; it needs to be something pretty big, like Mr X’s holiday! Most importantly of all, the court will not allow a situation to arise where a person is left with only imaginary money so that they cannot meet their basic needs.
The final category of misbehaviour relates to how the parties act within the actual court case. In many financial cases, the parties have to provide extensive information about their income and assets and may be asked written questions about their circumstances. If a party repeatedly delays or refuses to provide information then the judge can make costs orders against them. This would mean that rather than a party being responsible for their own lawyer’s fees alone, they might also have to make a contribution to the other party’s legal fees. This might reflect the additional costs the “innocent” party has had to spend in order to force the “guilty” party to come up with information and documents they should have provided voluntarily.
The breakdown of a relationship can bring about the airing of a whole range of grievances and some individuals may feel that the only just outcome would be for the person perceived to be at fault to be penalised financially by the court. In practice, the court is extremely reluctant to do this and will only allow it where the circumstances truly justify it. In all but a handful of cases, spending time and money trying to get the court to find fault will only reduce precious resources without achieving any additional gain.