As family lawyers we often find ourselves having to dispel misconceptions in an initial divorce appointment due to incorrect or misleading information available online. Here we discuss the most common misconception that we address, namely conduct.
A common question we are asked in an initial divorce appointment is ‘If my husband or wife has cheated does that mean I will receive a more favourable financial settlement?’
Infidelity will not influence how the matrimonial pot is to be divided. Whilst we accept that separation is incredibly stressful and emotional and that many clients expect the court to ‘punish’ their spouse for their behaviour, unless their conduct is exceptional it is likely to be disregarded.
If conduct is to have any weight it must be ‘obvious and gross’ and it must be ‘inequitable to disregard it’ (stated in the case of Miller and Miller). By example, we would expect for the court to make adjustment for the following types of extreme and gross behaviour:
- If one party seriously harms the other so much so that this leaves life-changing injuries which impact their employability.
- Sexual assault of a child of the family.
These are extreme cases which would warrant the courts’ consideration. Only in such circumstances would a court ‘punish’ a spouse by adjusting the division of the matrimonial pot.
Character flaws, such as a spouse gambling matrimonial funds or using joint money to fund drug or alcohol addiction would not be considered. The court have deemed in such cases that it is a case of ‘taking your spouse as you find them’. Whilst this may seem quite harsh, the court’s position is that unless such behaviour is intended to dissipate assets and is done so deliberately then it does not meet the criteria.