Intolerable cruelty
Should the “no fault” principle still apply in cases of gross misconduct?
You’ve been married for 10 years and discover that your spouse has spent tens of thousands of dollars paying prostitutes or flying a lover to overseas holidays. Or, they’ve developed a raging methamphetamine or gambling habit that puts them into serious debt – or worse, jail. Where to, then, when it comes to dividing relationship property?
Courts have long taken a “nofault” approach in relationship-property division, unless one partner’s bad behaviour reaches a very high threshold – the conduct must be “gross and palpable” and must also have significantly affected the extent or value of the relationship property.
In general, that’s still the thrust of the Law Commission’s preferred approach – but the new proposals do offer wronged spouses some wriggle room. The commission says the law should be amended to allow misconduct to be taken into account when the courts are assessing whether there are extraordinary circumstances that make equal sharing “repugnant to justice”.
Senior family lawyer Antonia Fisher QC says the no-fault system sets our divorce laws apart from most other countries and should be maintained. “We really want to do away with fault. Providing greater recognition for misconduct would incentivise partners to focus on fault and lay blame, which in turn would place an impossible burden on courts. The law would become less certain and less predictable.”
Fisher says it isn’t unusual for lawyers to see clients who have tracked their partners’ infidelity through mysterious references on credit card bills. “It’s a matter of adding up the spending, which needs to meet the threshold of ‘gross and palpable’ before it can be taken into account. In other words, the spending needs to be ‘really bad’. It is essential to differentiate between the conduct and the spending.”
When the spending does reach the required threshold, one partner can be forced to reimburse the money. But if a court rules there are extraordinary circumstances that mean equal sharing is repugnant to justice, it can tip the split to a 40-60 or 30-70 division.
Fisher says courts tend to be sympathetic when a drug, alcohol or gambling addiction eats into relationship property.
Another family lawyer, Jeremy
Sutton, wants to see specific misconduct – imprisonment for sexual abuse or domestic violence – disqualifying partners from a 50-50 split, even if the conduct hasn’t reduced the amount of relationship property available. “Why should a very violent person get a 50% split? The no-fault rule needs a limit.”
He agrees there shouldn’t be “a general reaccounting” of the relationship after it’s ended, but says the existing provisions are already reluctantly applied, and widening the definition of misconduct would be useful.
When the spending does reach the required threshold, one partner can be forced to reimburse the money.