Divorce The Blame Game

Posted: Thursday July 8 2021

By: Rachel Roberts

Divorce The Blame Game

Divorce The Blame Game – Its not unusual for people getting divorced to feel aggrieved and want to blame the other party, often not only for the breakdown of the marriage but potentially also for conduct during the marriage, which might be behaviour, such as affairs, or even financial conduct. The issue of (bad) behaviour and conduct arises at various times through a process of separation, and there is often confusion about when it will be relevant. The key moments are usually as follows:

Divorce

Currently, to get divorced, it is necessary to either wait two years to divorce with no allegations or to cite adultery or unreasonable behaviour.

It has been well publicised that we will soon move to a no-fault regime in respect of the divorce itself, meaning that it will no longer be necessary to cite fault. Like most family lawyers, I welcome this change in the law which is long overdue and reflects the change in societal attitudes towards divorce. Not only does this mean that parties will be able to start the process without an additional layer of acrimony, but it also recognises that the reasons behind marriage breakdowns are often multi-faceted and the fault rarely lies with just one party.

No fault divorce is due to come in to effect in April 2021, and some of my clients are choosing to wait until then to start the process.

Financial settlement

The situation is a little trickier when it comes to financial matters. Often clients that consider they have been the victim of bad behaviour during the marriage feel very strongly that the other person should be financial penalised for that behaviour. However, it is relatively rare for behaviour, referred to as conduct within proceedings, to be held against one party and to result in a reduced financial settlement.

What does the law say?

One of the factors judges are required to consider is whether to take into account conduct, if cited by one of the parties. However, the judge is only required to factor in behaviour that “it would be inequitable to disregard”. In practice, the case law has severely curtailed most party’s prospects of relying on conduct.

For example, the court has no interest in whether a party has had an affair or left the family home or been an absent parent during the marriage. This type of personal conduct rarely has financial consequence.

The type of conduct that may have an impact is usually financial misconduct, such as gambling or excessive spending, or otherwise conduct such as an assault that results in one party being unable to work.

Even then, it is a high hurdle to meet, and case law has suggested that the behaviour needs to be “reckless and wanton”, and you would usually need to evidence a financial loss. The cases where behaviour is considered are the exception rather than the rule.

Bad behaviour within proceedings

Where a party conducts themselves badly within proceedings, either causing delays, or failing to provide what the court has ordered them to, this is known as litigation misconduct. The remedy there will usually lie in the court making a costs order against that party, to allow the wronged party to recover the additional costs incurred because of that behaviour.

This however will not usually result in a different settlement, only the recovery of costs.

Children

Where parents are unable to agree the arrangements for the children, and apply to court, the court has to determine the outcome by considering something called “The Welfare Checklist”.

Whilst this checklist does not specifically use the words “behaviour” or “conduct”, it does refer to the parties’ abilities to care for the children and any harm the child has suffered or is likely to suffer in the future.

The past and present behaviour of the parents insofar as it relates to the welfare of the children is therefore intrinsic to the determination of these proceedings.

Where one party is concerned about the behaviour of the parent, it is important to take advice to consider whether protective steps are needed, but I also always advise clients to keep a diary, so they can accurately recollect any incidents.

Summary

Behaviour can therefore be relevant, but save under the present divorce regime, it is usually behaviour that sits at the extreme end of the spectrum that influences outcomes.

This can be hard to hear but helps to avoid endless mudslinging which would not only vastly increase acrimony and legal fees, but also cause endless delays, whilst the court picked through the history of a marriage, to decide where the blame lies. For most parties, a pragmatic and forwarding looking approach serves them far better.

Find out more about Rachel when she took our quick fire interview here.

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