Conduct in Divorce and Financial Remedy Proceedings

It is no secret that divorce is an extremely upsetting and stressful time for everyone involved. Emotions are running high and it’s natural to want to place blame on the other person and their bad conduct with a view to obtaining some kind of justice or compensation from the courts.

The issue of conduct has, however, been largely removed from the legal process of divorce and financial remedy, and it is very rarely relevant to the court’s decision-making process.

Prior to April 2022, when issuing a divorce petition to the court, the petitioner spouse was able to set out the reasons why the marriage had irretrievably broken down. This included the grounds of the respondent spouse’s unreasonable behaviour, adultery, desertion of the petitioner, or separation with or without consent.

On 6 April 2022, the law changed, and it is no longer necessary to provide reasons explaining why a spouse is applying for a divorce. This has effectively removed the issue of conduct completely from the vast majority of divorce and related financial remedy cases.

In the financial remedy courts (which are separate from the divorce courts) the issue of conduct has an extremely high threshold which needs to be reached to satisfy a judge so that it should be considered when they are considering the appropriate division of financial resources.

According to the legislation, the conduct must be such that it would be inequitable to disregard. In practice, to reach the threshold of what would be inequitable conduct to disregard within financial remedy proceedings, there must generally be a direct or indirect link to the financial resources of the couple.

An example would be where a spouse has deliberately spent money or disposed of assets in order to purposely reduce the marital pot for division and therefore the other spouse’s claim.

Another example found in case law is where a husband attempted to murder his wife and was sentenced to 12 years in prison. This therefore had the effect of prioritising the wife and children’s financial needs over those of the husband.

The reasons for restricting conduct issues in divorce and financial remedy proceedings is to help minimise the effects of emotion on the process, promote a more amicable and constructive approach, and reduce legal costs. The aim is to make the process less painful, not only for the couple separating, but also for any children who are involved. This in turn helps to keep legal costs down as more acrimonious and hostile cases generally involve more angry and protracted correspondence back and forth, thereby increasing fees.

Although it is understandably frustrating, divorcing couples should be aware that the divorce and financial remedy courts are not ones of morals, and their main concerns are to legally end the marriage and divide the matrimonial pot, not to decide what constitutes immoral conduct within a marriage.

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