We thought we’d start an occasional series looking at some of the common misconceptions surrounding divorce and civil partnership dissolution. There’s a great deal that people don’t understand about the way the process works, and because divorce is still, to an extent, “taboo” in polite society it’s not easy to get information out there about the mechanics of it all. It’s such an emotive subject, too, that people are sometimes scared to speak about it. Our aim is to make the information available here, in case it’s helpful to anyone struggling to find answers for themselves or for a friend.
The most shocking thing about divorce for many people is the fact that if someone has had an affair, or been violent, or behaved dreadfully in a marriage or a civil partnership, this has no effect on the way the law approaches the division of finances in most circumstances. Husbands can find it difficult to accept that the law allows a wife (who may or may not work) to start a new relationship, leave and take the children to live elsewhere, and still achieve a court order giving her a house and a regular maintenance payment from him. Equally, wives whose husbands leave find it difficult to accept that through no fault of their own they may have lost their financial security and/or become dependent on benefits, as what was enough to run a household during the marriage is not enough to support two after separation. The question that both tend to ask is “why do I get punished when it wasn’t my fault?”
The first thing to say is that the courts make their decisions about financial division on divorce on the basis of a list of criteria set out in s25 of the Matrimonial Causes Act 1973 – you can find out more about that by downloading our financial principles factsheet here. This list of things to consider means that the court looks carefully at criteria such as each person’s needs and what resources they have to fulfil them, their ages, their earning capacities and standards of living. The court’s first consideration in sorting out finances is the children, which in practice will mean that whichever parent is the children’s primary carer will have priority in terms of the resources allocated for housing, and a greater need for income.
The court’s view in most cases is that whatever bad behaviour has gone before is irrelevant to these pivotal questions of how to fulfil each person’s needs going forward. In most cases, there isn’t enough to go around in any event, so there’s simply no scope to think about past misdemeanours.
Despite these clear principles, in fact “conduct” remains a factor that the court can take into account under s25 of the Matrimonial Causes Act. The court will consider behaviour relevant to financial division in two broad circumstances: if one party has behaved so badly that the conduct is “gross and obvious” and it would be wrong for the court not to take it into account, or if the bad behaviour has caused significant financial loss. In the latter circumstances this could be irresponsible gambling, for instance, but not a bad business decision; in the former, it may be extreme domestic abuse causing long-lasting effects. Matters short of that simply don’t affect the court’s judgment.
The main reason that the law keeps such tight control over what constitutes “conduct” is that the court is engaged in a future-focused task to determine each person’s financial entitlement. If the court were to allow consideration of who left whom and why to affect its judgment, it would have to make moral evaluations of each person’s behaviour throughout the marriage, rather than concentrating on a legal analysis. The court time required to hear full argument on these matters would be massive, and cross-examination would be a mud-slinging exercise which would entrench each person’s position and make it even more difficult for each of them and the children to move on. Also, allowing marital misdeeds to affect the way the court divides finances would run the risk that the children could be disadvantaged – what if their primary carer were the one who had affairs, had a temper, or regularly spent too much on shopping (according to the other parent)? Would it be right to restrict the children’s living standards to punish that parent?
The law’s approach to conduct in financial division after divorce or dissolution reinforces the fact that court’s exercise is a legal one not a moral one. Financial matters are judged by objective evaluations of relevant matters – those in s25 – and not on an analysis of what was/wasn’t or should have/have not been done in relation to the marriage. We hope that for those going through divorce or dissolution, it is some comfort to know that the courts do not make moral judgments unless the circumstances are extreme. However, we also understand that for some people, the objectivity of the court’s approach counteracts their personal notion of the concept of fairness. Please do contact us or comment below if you have any thoughts on this matter that you would like to share.