Now that the new ‘no fault’ divorce process has become law, the previous regime of having to prove fault has gone. Under the old law, it was necessary to show the irretrievable breakdown of the marriage by reference to one of five facts – unreasonable behavior, adultery, two-year separation with consent, desertion, or five-year separation.
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Now all that is required is a statement of irretrievable breakdown – with no particulars of the reason for the breakdown being required. This is good news and should take away the animosity often caused by the need to prove fault and the risk of contested proceedings if the parties cannot agree.
However, when it comes to considering the financial arrangements between the parties, they often believe that the conduct of their spouse will be a relevant feature in the financial outcome. I have been asked by clients whether their wives will be able to receive a share of their pension if the breakdown of the relationship is a result of her adultery. I have also been asked by clients whether a husband will be entitled to any of the capital in the family home if he has been abusive and violent to her during the marriage.
The answer in both scenarios is quite simple – conduct is very rarely taken into account in considering the financial claims between the parties. Even very serious, appalling and abusive conduct during a marriage will not necessarily result in a party being deprived of their fair share of the assets. The cause of the breakdown of the marriage is rarely of any relevance at all.
However, if one party has dissipated assets – wasted through extravagant spending, gambling, excessive borrowing or the fraudulent transfer to a third party – that may be a form of ‘financial conduct’ that should be taken into account in considering how to share what is left. Also, if during the course of the financial proceedings, one party pursues irrelevant issues or does not comply with the court-imposed timetables, they may be penalised in costs.
However, the reasons behind one or both parties to a marriage deciding they can no longer remain together are rarely of relevance. Conduct arguments are difficult to pursue and often lead to inflaming the emotions of the other party – making settlement less likely and the overall costs of proceedings inevitably increase.
If you would like further advice about this, contact us on 0191 5000777.