As part of the divorce process, parties will often be asked to complete a Form, (Form E) setting out their financial position and confirming any special circumstances that they believe should be taken into account.
Towards the end of this form there is question about whether bad behaviour should be taken into account when deciding how the assets of the marriage should be divided. I am frequently asked what counts as “bad behaviour”.
The question reads:
“Bad behaviour or conduct by the other party will only be taken into account in very exceptional circumstances when deciding how assets should be shared after divorce/dissolution. If you feel it should be taken into account in your case, identify the nature of the behaviour or conduct below”.
One of the most common questions is whether adultery counts as bad behaviour for this purpose and the answer is that it doesn’t. In fact, it is quite rare for personal conduct to be taken into account even though, on the face of it, it may seem unfair for someone who has committed adultery to end up with half of the marital assets, or in some cases more than half.
Generally, the court’s position is that conduct will only be taken into account when making decisions about how the matrimonial assets are divided if the conduct is so serious that it would be unfair to disregard it.
Some examples of where bad behaviour or conduct may be taken into account are as follows:
- Extreme physical abuse of the partner or children of the marriage. For example, if one party has physically injured the other to the point that their future earning capacity is affected.
- If one party has recklessly overspent or had an addiction such as alcoholism or gambling which meant that the funds of the marriage were reduced considerably.
- If one party has been convicted of a crime and sentenced to a long term in prison
You will see from these examples that the behaviour has to be relatively extreme, and in most cases, general “unreasonable behaviour” will not be sufficient to be considered. Even in extreme cases, the Court have discretion and can decide that it would be unfair for it to be taken into account.
Article written and contributed by : Cheryl Haywood, Associate Solicitor, Family Group, SAS Daniels LLP
DISCLAIMER: This article should not be regarded as constituting legal advice in relation to particular circumstances. It is merely a general comment on the relevant topic. If specific advice is required in connection with any of the matters covered above, please speak to SAS Daniels LLP directly.