As part of the divorce process, parties will often be asked to complete a ‘Form E’ setting out their financial position and confirming any special circumstances that they believe should be considered. When deciding how the assets of the marriage should be divided, people often question whether bad behaviour should be taken into account, but what is considered as ‘bad behaviour’?
One of the most common questions that is asked is whether adultery counts as bad behaviour; the answer is no, it does not. 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.
When making decisions about how the matrimonial assets are divided, the court’s position is that personal conduct will only be considered if the conduct is so serious that it would be deemed unjust to disregard it. Examples of this include:
- Extreme physical abuse of the spouse or children of the marriage. For example, if one spouse has physically injured the other spouse to the point that their future earning capacity is affected.
- If one spouse has recklessly overspent or had an addiction, such as alcoholism or gambling, which meant that the funds of the marriage were depleted considerably.
- If one spouse has been convicted of a crime and sentenced to a term in prison.
It is, therefore, the case that the behaviour has to be relatively extreme in order to count as ‘bad behaviour’, and in most scenarios, general ‘unreasonable behaviour’ will not be sufficient. Even in extreme cases, the court has discretion and can decide that it would be unfair for it to be taken into account.