Going through a divorce is often a complicated, emotionally charged process for couples, in part because of the financial settlement.
While the behaviour of a spouse is often the driving force behind divorce, it’s a common misconception that it will also affect the financial settlement and the amount the other spouse might receive.
Grounds for divorce
In England and Wales, a spouse can petition the course for divorce on the basis of:
- unreasonable behaviour
- desertion (for minimum of two years)
- two years separation
- five years separation separation
Does the grounds for divorce affect the financial settlement?
It’s important to highlight that taking into account both personal and financial misconduct for the financial settlement between ex-spouses is extremely rare.
The grounds for divorce are considered irrelevant to the court and normally don’t affect the ancillary relief proceedings (the division of marital assets).
Although it may appear unfair, the reason for this is because all financial settlements must abide by the legislation and rules in the Matrimonial Causes Act 1973.
This means that, in the majority of cases, assets will be split according to need or other statutory criteria in the Matrimonial Causes Act, regardless of who the injured party is.
Does adultery or personal misconduct affect the divorce settlement?
If you are issuing a divorce petition on the basis of adultery or unreasonable behaviour, your ex-partner’s personal misconduct will often be relevant to the proceedings.
However, it’s rare that the specifics of the personal misconduct will be taken into account when determining the financial settlement.
For that to happen, the misconduct has to be extremely serious in order to justify ‘penalising’ the misbehaving spouse and reducing their settlement.
Some examples include cases where the wife has shot or stabbed her husband, or the husband has attacked his wife with a razor.
Does financial misconduct affect the divorce settlement?
Financial misconduct such as excessive gambling, unjustified lavish spending or placing assets beyond the reach of one of the spouses – often falls under the umbrella term of ‘unreasonable behaviour’.
The above are all examples of unreasonable behaviour and don’t necessarily mean that you are entitled to more in a divorce settlement.
However, courts are generally more likely to consider financial misconduct than personal misconduct when it comes to the divorce financial settlement.
These cases, however, are still rare rather than the norm.
If the court decides to take the financial misconduct into account, they may try to rectify the wrong by ‘adding back’ the dissipated money or assets.
In reality, this could mean you may get a better financial settlement or more assets to produce a fairer outcome.
Behaviour during the ancillary relief proceedings
Your spouse’s behaviour prior to the proceedings may not have much an effect on the amount of financial settlement you will receive but the same is not true for their behaviour during the proceedings.
If one party attempts to frustrate or antagonise the other during the divorce process, the court may consider this behaviour as obstructive.
In cases where your spouse doesn’t make an honest or a full disclosure of their finances, or cause delays in an attempt to hinder the proceedings, the court is also in its right to hold them accountable.
In the end, your spouse’s problematic behaviour or adultery may lead you to petition the court for divorce but more often than not, it has no bearing on the financial settlement you will receive.
Legislators recognise that blaming one spouse can be hugely problematic which is why the grounds for divorce do not affect the financial rulings in most cases.
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