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Divorce and Family Law specialist This is a question I get asked a lot. A husband or wife comes to me in pieces; their spouse has just announced that they have fallen in love with someone else, and they want to know whether the ‘culpable’ spouse still gets to walk away with half the assets.
The bad news for clients in this situation is that the law does not take into account the reason for the termination of a marriage when deciding how the matrimonial assets should be divided.
The law – achieving ‘fairness’
There is no standard formula for calculating how finances should be divided on divorce. Instead, the court must refer to a set of factors listed at Section 25 of the Matrimonial Causes Act 1973, known as the ‘Section 25 factors’, giving first consideration to the needs of any children. Whilst ‘conduct’ is one of these factors, it will only be relevant in very exceptional circumstances, such as where a serious crime has been committed.
The court’s goal is to achieve fairness
The starting point is that assets accrued during a marriage (known as matrimonial assets) are divided equally, and the guiding principles applied are ‘equal sharing’, ‘needs’ and ‘compensation’.
Where an equal division of matrimonial assets adequately provides for the capital and income needs of each party and any children, this is the appropriate financial outcome.
Where the needs of the parties and any children cannot be met by an equal division, an unequal division of resources may be appropriate instead. In these cases, needs are likely to dictate how capital and income are divided.
In some cases, the sharing principle may be applied at a later date, with a reallocation of resources in the future. Typically, this may involve one party having a deferred interest in the matrimonial home that will be realised once any children finish their education.
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Relevance of a new relationship
‘Adultery’ is not one of the factors the court will consider when deciding how finances should be divided.
A new relationship is only relevant, potentially, if your spouse is cohabiting with their new partner as this may mean they have more income available to them. Any extra income, however, is not simply added to their own income. The question for the court is what the new partner ought to be contributing to the domestic economy. This is perhaps better analysed in terms of a reduction in the spouse’s needs but can be viewed as an additional resource from which those needs might be met.
What this means for you
If you and your spouse cannot reach an agreement between you and the court needs to decide how your finances should be divided, your spouse is entitled to a fair settlement even though they have cheated. This means they are likely to be awarded one half of the matrimonial assets unless your respective ‘needs’ mean that an unequal split is necessary.
In some circumstances, in light of the parties’ respective needs, a cheating spouse will end up with more than half of the assets, at least in the short term.
Striking while the iron is hot
It is always open to you and your spouse to reach a different resolution between you; often, a cheating spouse will settle for less than the maximum award the court would give due to feelings of guilt.
However, you will need to apply to the court for a consent order in the terms of any agreement reached and the court will not necessarily approve a consent order because the parties agree the terms; it has an independent duty to inquire whether a draft order represents a fair outcome, although if the order is drafted by competent legal representatives, the court is very likely to approve it and, in the words of Baroness Hale in the case of Sharland v Sharland [2015] at paragraph 20 will be “heavily influenced by what the parties themselves have agreed“.
It follows that it is sensible to seek early legal advice.