The Effect of Spousal Behaviour on Financial Settlements and Legal Costs

Individuals filing for divorce on the grounds of adultery or unreasonable behaviour often think the ‘bad’ behaviour of a spouse will lead to a more favourable financial outcome for the ‘injured’ party. This is a common misconception. In reality the reasons for the divorce are generally irrelevant to the court and will not influence the outcome of the ancillary relief proceedings (when the marital assets are divided). Although this may seem unfair, the court must adhere to the rules set out in the Matrimonial Causes Act 1973.
What this means is that in the vast majority of cases, the assets will be split according to need or according to the other statutory criteria set out in the Matrimonial Causes Act, regardless of ‘who was to blame’ for the breakdown of the marriage. If there are young children involved, this could for instance result in a wife who has been unfaithful leaving the marriage with the lion’s share of the assets, since the needs of the children will always take precedence, and in most cases, the children will reside with their mother.
Although this may sometimes be a bitter pill to swallow, the fact that behaviour is not taken into account when making financial awards should discourage spouses from contesting divorce applications on the grounds of adultery or unreasonable behaviour, therefore speeding up what can be a painful process. Also as a matter of policy it is generally accepted that if conduct were to be relevant to financial entitlement this would lead to long and expensive Court cases with couples vying with each other to prove who was responsible for the breakdown of the relationship – and this should approach should be discouraged. However, conduct during a relationship can be taken into account if it is so bad that it should not be ignored. Into this category may fall violence perpetrated by one party on another which may impact or limit their ability to work in future. Significant financial loss as a result of the extreme financial irresponsibility of one spouse e.g. on-going gambling is another example of conduct which should not be disregarded.
Spousal behaviour during the ancillary relief proceedings
During the financial proceedings themselves, however conduct does more often become relevant insofar as the court takes a dim view of any spouse deliberately trying to frustrate the divorce process. The court might consider certain behaviour as obstructive such as failure to make a full and frank disclosure of finances, raising irrelevant issues, making unfair offers to settle or deliberately drawing out the legal process.
Also if there is evidence that a spouse has breached the Pre-Action Protocol and Family Procedure Rules published by the Law Society and caused additional, unnecessary legal costs to be incurred by the other spouse who has complied, then it may be possible to ask for a costs order. This means the court will instruct one spouse to pay some or all of the other spouse’s legal costs.
It should be understood that costs orders are very infrequent in divorce cases. But there are two types of order potentially available; ‘party and party costs’, which covers costs reasonably incurred in the proceedings (typically up to two thirds of the spouse’s legal bill), and ‘indemnity costs’, which orders the spouse to pay the full legal costs of the recipient party.
Indemnity cost orders are unusual and are only issued in really exceptional cases.
However, if faced with a hostile spouse it is well worth drawing their attention to the consequences of an indemnity costs order – the thought of having to pay not only the financial settlement, but also two sets of costs can be highly effective in discouraging spouses from deliberately trying to frustrate proceedings.
This article is intended as an easy to understand introduction to some aspects of divorce, free of legal jargon. However, divorce is a complex, and unfortunately sometimes non-intuitive area of law. Please contact us for more specific advice about your individual circumstances and the legal processes which apply.

Individuals filing for divorce on the grounds of adultery or unreasonable behaviour often think the ‘bad’ behaviour of a spouse will lead to a more favourable financial outcome for the ‘injured’ party. This is a common misconception. In reality the reasons for the divorce are generally irrelevant to the court and will not influence the outcome of the ancillary relief proceedings (when the marital assets are divided). Although this may seem unfair, the court must adhere to the rules set out in the Matrimonial Causes Act 1973.

What this means is that in the vast majority of cases, the assets will be split according to need or according to the other statutory criteria set out in the Matrimonial Causes Act, regardless of ‘who was to blame’ for the breakdown of the marriage. If there are young children involved, this could for instance result in a wife who has been unfaithful leaving the marriage with the lion’s share of the assets, since the needs of the children will always take precedence, and in most cases, the children will reside with their mother.

Although this may sometimes be a bitter pill to swallow, the fact that behaviour is not taken into account when making financial awards should discourage spouses from contesting divorce applications on the grounds of adultery or unreasonable behaviour, therefore speeding up what can be a painful process. Also as a matter of policy it is generally accepted that if conduct were to be relevant to financial entitlement this would lead to long and expensive Court cases with couples vying with each other to prove who was responsible for the breakdown of the relationship – and this should approach should be discouraged. However, conduct during a relationship can be taken into account if it is so bad that it should not be ignored. Into this category may fall violence perpetrated by one party on another which may impact or limit their ability to work in future. Significant financial loss as a result of the extreme financial irresponsibility of one spouse e.g. on-going gambling is another example of conduct which should not be disregarded.
Spousal behaviour during the ancillary relief proceedings

During the financial proceedings themselves, however conduct does more often become relevant insofar as the court takes a dim view of any spouse deliberately trying to frustrate the divorce process. The court might consider certain behaviour as obstructive such as failure to make a full and frank disclosure of finances, raising irrelevant issues, making unfair offers to settle or deliberately drawing out the legal process.

Also if there is evidence that a spouse has breached the Pre-Action Protocol and Family Procedure Rules published by the Law Society and caused additional, unnecessary legal costs to be incurred by the other spouse who has complied, then it may be possible to ask for a costs order. This means the court will instruct one spouse to pay some or all of the other spouse’s legal costs.

It should be understood that costs orders are very infrequent in divorce cases. But there are two types of order potentially available; ‘party and party costs’, which covers costs reasonably incurred in the proceedings (typically up to two thirds of the spouse’s legal bill), and ‘indemnity costs’, which orders the spouse to pay the full legal costs of the recipient party.
Indemnity cost orders are unusual and are only issued in really exceptional cases.

However, if faced with a hostile spouse it is well worth drawing their attention to the consequences of an indemnity costs order – the thought of having to pay not only the financial settlement, but also two sets of costs can be highly effective in discouraging spouses from deliberately trying to frustrate proceedings.

This article is intended as an easy to understand introduction to some aspects of divorce, free of legal jargon. However, divorce is a complex, and unfortunately sometimes non-intuitive area of law. Please contact us for more specific advice about your individual circumstances and the legal processes which apply.

Contact Jane McDonagh
jane.mcdonagh@smab.co.uk