Spousal con­duct and how it af­fects divi­sion of as­sets

Belfast Telegraph - Business Telegraph - - News - By­clare­cur­ran, Mat­ri­mo­nial part­ner @clarel­cur­ran Clare Cur­ran is Part­ner in charge of the mat­ri­mo­nial depart­ment at Wor­thing­tons Solic­i­tors in Belfast and New­tow­nards. Clare spe­cialises fam­ily and mat­ri­mo­nial law. She can be con­tacted on clare@wor­thing­ton

ONE as­pect of di­vorce that sur­prises many clients when they come to dis­cuss a mar­riage break­down is how bad be­hav­iour on the part of their spouse, per­haps in the form of an adul­ter­ous re­la­tion­ship or some other form of un­rea­son­able be­hav­iour, is looked at in divi­sion of the mat­ri­mo­nial as­sets.

In many sce­nar­ios, the courts take the view that such be­hav­iour will have lit­tle to no bear­ing on the fi­nan­cial set­tle­ment, which can be dif­fi­cult for a spouse who feels wronged as a re­sult of their part­ner’s con­duct.

The leg­is­la­tion which gov­erns the divi­sion of fi­nances on di­vorce is the Mat­ri­mo­nial Causes (North­ern Ire­land) Or­der 1978 which sets out that the courts must have re­gard to a num­ber of fac­tors; one of those be­ing the con­duct of each of the par­ties “if that con­duct is such that it would, in the opin­ion of the court, be inequitable to dis­re­gard it”.

Lawyers ad­vis­ing in this area look to de­ci­sions from the courts as to what be­hav­iour has been held to be inequitable to dis­re­gard and in­deed what be­hav­iour has not. When look­ing at the case law, it is clear that, in those cases where con­duct has been taken into ac­count, it is rarely — if ever — the key de­cid­ing fac­tor in de­ter­min­ing the over­all split of the as­sets. The Mat­ri­mo­nial Causes Or­der in fact spec­i­fies eight fac­tors to which the court must have re­gard, and first con­sid­er­a­tion is to be given to the wel­fare of any mi­nor chil­dren of the par­ties.

So when do the courts con­sider that con­duct is deemed to be rel­e­vant, or more pre­cisely “inequitable to dis­re­gard”?

The case law demon­strates that mere bad be­hav­iour is not enough, rather some as­cer­tain­able detri­ment usu­ally needs to have re­sulted from the be­hav­iour to have an im­pact on dis­tri­bu­tion of as­sets.

One such ex­am­ple was a case wherein a hus­band was sen­tenced to im­pris­on­ment for a vi­o­lent as­sault on his wife. The court held that the as­sault could not be over­looked in de­ter­min­ing the fi­nan­cial split as this was linked with the fact that he had ren­dered him­self in­ca­pable of fi­nan­cially sup­port­ing the fam­ily and there­fore it would have been inequitable to dis­re­gard it.

Sim­i­larly, in a case where an as­sault on a wife re­sulted in a re­duc­tion in her earn­ing abil­ity, this too was de­ter­mined to be a rel­e­vant fac­tor by the courts in de­ter­min­ing the award to the wife. Cases where the con­duct of one party has had a clear and detri­men­tal ef­fect on the fi­nances of the par­ties are gen­er­ally speak­ing more read­ily con­sid­ered a rel­e­vant fac­tor, such as de­lib­er­ate dis­si­pa­tion by one spouse of the fam­ily’s as­sets.

Ad­di­tion­ally, cases in­volv­ing lit­i­ga­tion mis­con­duct, such as where ef­forts are made by one party to de­lib­er­ately with­hold in­for­ma­tion about the ex­tent of their fi­nan­cial in­ter­ests or to hide as­sets from their spouse, may also be con­sid­ered as facts which are “inequitable to dis­re­gard” and thus re­sult in a re­duc­tion to the wrong­ful party’s award, or at least an or­der to pay their spouse’s le­gal costs.

Each case will turn on its own facts, so it is im­por­tant to take le­gal ad­vice from a so­lic­i­tor who spe­cialises in this field in or­der to be fully ap­praised of how a court is likely to de­ter­mine the divi­sion of your fi­nances.

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