It is no secret that divorce law in England and Wales is about to undergo radical change.
On April 6 2022 the current blame-based system was replaced by no-fault divorce, meaning that couples no longer have to provide a fault-based reason or wait a lengthy amount of time before starting divorce proceedings.
With a recent poll by Stowe Family Law revealing 43 per cent of respondents believe behaviour affects how much they would receive in a financial settlement upon divorce, it may be hard to comprehend that this evolution of law will have little to no effect on corresponding financial matters.
In reality, parties' conduct before and during divorce proceedings will only be considered in circumstances where the courts believe the behaviour in question is especially "gross or obvious". It does not include adultery or the ordinary run of fighting and quarrelling in an unhappy marriage, and these behaviours do not influence any financial award.
No-fault divorce will not bring any change to the way the law views people’s conduct during a marriage. The starting point of the family court will remain, as much as possible, to provide an equal division of the matrimonial assets. Of course on the proviso that there is no other compelling reason to depart from this, and the parties' needs can be met in doing so.
This is not to say it is not possible to argue an ex-spouse’s perceived abhorrent conduct should be taken into account; in fact, the law that deals with the division of assets on divorce specifically states the court can take into account someone’s conduct in determining what is a fair settlement.
However, as it stands, this is a tricky argument to run. With no definitive guiding principles or comprehensive test to decide what behaviour might be considered serious enough, litigators are required to look at case law in conjunction with the specific facts of each case to assess the likelihood that this type of argument may be successful.
A court can consider two types of conduct: personal conduct and financial conduct.
An example of personal conduct is shown in the case of Evans vs Evans (1989); the wife incited someone to murder her husband and her behaviour was seen as serious enough that the court was willing to account for this when making a financial order.
However, it was noted by Lord Justice Balcombe within his judgment that this type of behaviour may not be considered serious enough in all cases, giving way for some violent conduct and even homicide to be disregarded in some circumstances.
An instance where violent behaviour was disregarded within ancillary proceedings was in Hall vs Hall (1984), where the wife stabbed her husband during an argument and an award for maintenance was still made in her favour.
It is clear then that should a party wish to make an argument concerning the misconduct of their former spouse, they must evaluate the merits of such an argument objectively, considering all of the circumstances.