Is spousal behaviour now totally irrelevant on divorce?

Divorce, Dissolution and Separation Act

After years of campaigning, on 6 April 2022, the Divorce, Dissolution and Separation Act 2020 (DDSA) came into force. And with it, the need to apportion blame for a quick divorce disappeared. The new law allows one or both parties to apply to the Court for a divorce/dissolution on the sole ground that their marriage/civil partnership has broken down irretrievably, irrespective of fault. But does ‘no-fault’ divorce mean that spousal behaviour is now totally irrelevant on marital breakdown?

First, it’s important to remember that the DDSA only affects divorce/dissolution, ie ending the legal marriage/civil partnership contract. It has no bearing on a couple’s financial claims against each other. And divorce/dissolution does not automatically end those claims.

Many assume that a spouse’s affair, physical or emotional abuse or other poor conduct will result in a more favourable financial settlement. But that’s rarely true. Spousal behaviour is only relevant where misconduct is so serious that it would be unfair for the Court to ignore it.

Generally, serious misconduct falls into one of two categories – personal or financial.

Personal misconduct

To be considered a relevant factor, personal misconduct must be exceptionally serious. But even then, it may not result in the Court penalising the ‘guilty’ party financially. So, when domestic violence is taken into consideration, it’s usually only because the behaviour has directly impacted the victim’s financial position.

For example, in H v H (2005), Mr H had previously been convicted of attempting to murder Mrs H. As a result of the injuries she sustained in the attack, Mrs H could not return to work. In the subsequent divorce financial proceedings, the Court considered that Mrs H’s employment situation was Mr H’s fault.

Financial misconduct

Financial misconduct is the more common type of misconduct the Court is asked to consider. Cases of financial misconduct inevitably involve a party intentionally or recklessly taking steps to reduce the available financial pot. For example, in the case of Norris v Norris (2002), the husband spent large sums on purchasing a Ferrari and taking expensive holidays with his new partner.

In such cases, the other party usually asks the Court to ‘add back’ the funds dissipated. But even in seemingly clear and serious misconduct cases, there is no guarantee the Court will do so. In the case of MAP v MFP (2015), the wife argued that £1.5 million should be added back. There was no disputing that this was the amount the husband had spent on cocaine and various nefarious activities. However, the judge ruled that the husband’s motivation was not the deliberate dissipation of funds to thwart his wife’s financial claim, but instead the result of his own “demons”.

Conduct in the proceedings

It’s also important to remember that the Court can take into consideration a party’s poor conduct during the proceedings, referred to as ‘litigation misconduct’. Typically, it involves deliberately obstructing the proceedings by failing to cooperate with the Court’s timetable. Litigation misconduct is penalised by an order that the obstructive party contribute (or contribute more) to the other party’s costs.

However, raising conduct arguments should be limited to cases of serious misconduct. Doing so at other times can result in the Court penalising the complaining party.