Although the divorce law has recently been reformed so that blame no longer needs to be apportioned and cited as a reason for divorce, many clients are left feeling aggrieved when their marriage breaks down at the lack of accountability for what they consider to have been bad behaviour. As a family lawyer, when I first meet a new client they often want to explain to me who is to blame for the breakdown of their relationship and why. But, in the majority of cases, this information has no relevance to the advice I give or the likely outcomes.
Of course, in cases involving domestic abuse as a part of which protective measures are required, it can be necessary to understand the nature of behaviour in detail to secure appropriate orders. Previous behaviour can also be relevant to putting in place effective measures to protect children or a vulnerable spouse.
However it is rarely relevant when considering the finances of the parties. In advising my clients I must consider section 25 of the Matrimonial Causes Act 1973, which states the court must consider an individual’s conduct only if ‘that conduct is such that it would in the opinion of the court be inequitable to disregard it’. That is to say that, in general, for previous behaviour to be considered relevant in court there must be a link between the conduct complained of and the financial fortunes of the parties; it is not sufficient for one of the parties simply to claim the other’s conduct is unacceptable.
Clients often find it difficult to accept that whether their spouse has formed a new relationship is of little consequence to their divorce or to how the finances will be separated.
In 2020, the family court suggested four types of conduct would be relevant to court divorce proceedings including severe gross and obvious personal misconduct, wanton and reckless dissipation of assets, misconduct during the litigation process, and significant non-disclosure of assets.
In relation to the first two circumstances, the court must still consider both parties’ needs and should not leave one party in a predicament of real need. Therefore, in many cases the court can make very little adjustment to reflect conduct if there are not surplus assets once needs are met. In circumstances when the conduct complained of relates to the conduct of the litigation or fulfilment of obligations ordered by the court, judges are more likely to impose cost penalties than to alter the award.
It is important to have access to expert legal advice to help you understand the relevance of any arguments you wish to put forward during your divorce process and in order to manage your expectations of what outcomes you are likely to achieve.
If you have any questions about the new divorce laws in England and Wales or would like to make an enquiry about family law, please contact us on 01243 786668 or at info@georgeide.co.uk
Alice Leadbeatter, solicitor, family law department
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