Do The Grounds for Divorce Affect Financial Settlement?
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If you’re filing for divorce because of the actions of a spouse like adultery, bad debts, spending problems, or unreasonable behaviour you may feel you should be ‘compensated’ for the difficulties your spouse has put you through.
While the behaviour of a spouse is often the driving force behind the divorce, it’s a common misconception that the grounds for divorce affect the financial settlement and the amount the other spouse might eventually receive.
It is no longer necessary or even possible to file for divorce on the grounds of adultery or unreasonable behaviour since the introduction of no-fault divorce in England & Wales.
The new divorce law came into legal force in England & Wales in April 2022, and it also applies to civil partnership dissolution.
The only ground for divorce now is the irretrievable breakdown of the marriage.
“Under the new law, divorcing couples are no longer required to cite a specific reason or ground for divorce, all that’s required is to provide a legal statement to say the marriage has broken down irretrievably.”
Do the grounds for divorce matter?
It’s important to highlight that even before the law changed both personal and financial misconduct were considered irrelevant to the court and consequently for that to effect divorce settlements between ex-spouses were extremely rare.
Therefore, as the grounds for divorce are considered irrelevant to the court and generally don’t affect the division of marital assets following a divorce, then the situation remains unchanged since the new Divorce, Dissolution and Separation Act.
Although it may appear unfair, the reason for this is that a divorce settlement must abide by the legislation and rules set out in the Matrimonial Causes Act 1973.
This means that, in the majority of cases, marital assets will be split according to the needs of parties or other statutory criteria regardless of who the injured party is.
It’s rare that personal misconduct will be considered when determining the divorce financial settlement.
For that to happen, the misconduct has to be extremely serious in order to justify the court ‘penalising’ the misbehaving spouse and reducing their settlement.
Some examples of extremely serious behaviour include cases where the wife has shot or stabbed her husband, the husband has attacked his wife with a razor, or has committed incest with his children.
Courts are generally more likely to consider financial misconduct such as excessive gambling, unjustified lavish spending, or placing assets beyond the reach of a spouse rather than personal misconduct when it comes to the divorce financial settlement.
These cases, however, are also quite rare, rather than the norm, and it will largely only be very serious misconduct that impacts the other party financially which will be considered.
If the court does decide to take financial misconduct into account, the principle is that the court should not be punitive for its own sake but should apply its judgement from a legal perspective and not a moral one.
This could mean the ‘wronged party’ could, under extreme circumstances, get a better financial settlement or more assets to produce a fairer outcome.
When serious financial misconduct has been found, the court will undertake to rectify the wrong caused to the innocent party by ‘adding back’ the money or assets that have been acquired. This could be by deviating from the starting point of a 50/50 sharing and giving more assets to the innocent party.
A spouse’s behaviour prior to divorce proceedings may have little effect on the financial settlement, but the same is not true for behaviour during the ancillary relief proceedings, also referred to as the divorce financial settlement.
If one party attempts to frustrate or antagonise the other during the ancillary relief proceedings, the court may consider this behaviour as obstructive.
In cases where a spouse doesn’t make an honest or full disclosure of their finances or causes delays in an attempt to hinder proceedings the court is in its rights to hold them accountable.
This type of misconduct, known as litigation misconduct, is usually addressed by the court by making an ‘adverse costs’ order. This means the party at fault may be required to pay all or a contribution towards the other spouse’s costs.
“Ancillary relief proceedings are the proceedings concerned with financial matters upon divorce (the element of the legal process which specifically deals with financial matters). It is named so because financial matters are generally viewed as ancillary, or something which functions in a supplementary role, to the divorce proceedings.”
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