Does my ex-partners conduct affect what I am awarded?
The Court is required to take into account many factors when considering a couples financial settlement upon divorce. These factors are detailed in Section 25 of the Matrimonial Causes Act 1973 (MCA 1973), which includes the consideration of the conduct of either party.
While parties may be inclined to present allegations of misconduct to influence the financial settlement, conduct is rarely found to be relevant. As set out within S25(2)(g), Courts are only required to take into account conduct if it would be ‘inequitable to disregard it’ and the impact of such conduct is ‘financially measurable’. Case law dictates that conduct must be so ‘obvious and gross’ that a right-minded member of the public would say that it justifies a reduction or extinction of the claim.
Instances of personal and financial misconduct must meet the threshold of being so ‘gross and obvious’, that the Court would find it inequitable to disregard it. Examples of such, include situations where one party has attacked the other, leaving the victim virtually unemployable, or where an order has been obtained through fraud and/or dishonesty. Nonetheless, each case is dependant upon its individual facts and a finding of ‘gross and obvious’ conduct may not affect the final distribution. Although, in cases where there are sufficient assets to meet the parties needs, findings of conduct may diminish the financial provision awarded to the offending party.
Litigation Misconduct from a divorcing partner
There is another type of conduct which is more likely to affect a financial settlement, that being litigation misconduct. Litigation misconduct can cover a range of scenarios in family law proceedings, such as:
- Delay or failure to comply with Court orders;
- Refusal to provide full and frank financial disclosure;
- Attempting to mislead the Court;
- Filing unnecessary or unjustified applications;
- Unreasonably pursuing arguments.
In instances of litigation misconduct, the Court typically issues a costs order as redress. However, in certain cases a costs order may not suffice, whereupon the Courts can drastically alter the offending party’s financial entitlement.
This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.
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