Conduct in divorce: Does adultery impact a Financial Settlement?

What does “conduct” mean in a divorce?

The Matrimonial Causes Act 1973 (MCA 1973) established a set of criteria that a court could use to split finances. One of those criteria is conduct. The principle is that if a party’s behaviour is flawed, the other party can ask the court to consider this when determining how assets should be “fairly” allotted.

However, the court’s approach to assessing conduct is carefully structured under section 25(2)(g) of MCA 1973, which underscores that conduct will only be taken into account if it would be inequitable to disregard it. In short, this means the bar is set very high regarding poor conduct, so it is only considered in extreme cases.

What is considered when looking at conduct in divorce proceedings?

Conduct can be financial and non-financial. It may be that one party has spent or hidden assets deliberately to frustrate the claim of the other party, or it could be far more personal, such as physical, emotional or economic abuse. There is a reason we categorise conduct in this way, as the consequences may well depend on the actual circumstances of the case. It is also up to the accuser to prove the facts they allege, and the other party must be given an opportunity to consider and respond.

However, success in any category will be a challenge; the difficulty is not solely the identification of conduct but actually then tying it to a financial outcome. The reality is that conduct will only be considered in very rare cases. Indeed, this is the firm guidance from LJ Peel, national lead of the family court, who has made it plain that there is an exceptional threshold in such matters.

Why conduct does not have an impact in the majority of cases

The court has an overriding objective (FPR 2010 1.4) to actively manage cases efficiently, and so the emphasis is always on making decisions at an early stage. If there is not enough evidence, it will quickly be dismissed.

Aside from threshold considerations, the court may also look at matters such as relevance to outcome and proportionality. A party considering conduct must also reflect on the potential repercussions to the divorce proceedings, such as the impact on future negotiations and any punitive costs.

Returning to our title: adultery, however distressing, will simply not meet the high test for conduct in financial settlement as is the case for other poor behaviour – unless extraordinary. If you’re unsure how your circumstances compare to the guidance, it’s best to speak to a family lawyer.

How can Alsters Kelley help me?

Conduct in divorce is a complex concept, and so legal advice is vital.

At Alsters Kelley Solicitors, we have a team of experienced, friendly solicitors ready to support you in navigating your divorce. Receiving expert legal advice from the start ensures a smooth divorce whilst achieving the best long-term results for both you and your family.

There can be a lot to think about, and we appreciate that the unknown costs can be somewhat daunting. Therefore, we offer an initial fixed fee meeting for £300 plus VAT (20%). During the initial meeting, you will meet with one of our experienced and understanding family lawyers, who will listen to your situation and discuss your concerns in detail with you, providing tailored advice specific to your circumstances.

Alternatively, if you would prefer to discuss your options generally before proceeding with a fixed fee meeting, we offer a free ‘options’ call lasting up to 30 minutes.

To discuss your options with Karen Brennan, Senior Solicitor in the Family Law Department, email karen.brennan@alsterskelley.com or call 01926 356000