Does the Court Consider Bad Behaviour in Family Finance Proceedings?

A case recently hit the headlines about a husband found guilty in the Criminal Court of controlling and coercive behaviour during divorce proceedings. The behaviour included setting rules that his wife and children must stay five metres away from him. But will such bad behaviour impact how the assets are divided by the Family Court?

The parties’ behaviour is one of the factors which the court will consider if it would be unfair not to do so. It can be argued that one party’s behaviour is so poor that it should impact how the assets are distributed. In practice, the bar is extremely high for behaviour to be relevant. The courts are reluctant to consider the causes of separation and discourage reliance on each other’s behaviour.

Behaviour and negotiation

Given the limited prospects of success, it is worth considering the effect of arguments about behaviour on negotiation. In most cases, it will be more cost-effective to come to an agreement on dividing the assets rather than wait for a decision from the court. Negotiations also allow more flexibility in the terms of settlement. However, raising arguments about behaviour may increase conflict and discourage agreement. Focus should usually be on meeting financial needs or sharing the financial assets fairly.

Meeting the threshold

Despite the high threshold, there have been cases where the court gave weight to behaviour. In one case, the husband had been convicted of attempted murder of the wife. The judge awarded him a smaller percentage of the assets as a result. Behaviour has also been found to meet the threshold where a wife allowed a husband to wrongly believe he was her child’s father. In a third example, the husband lost a significant sum through gambling and repeatedly failed to be honest about his finances.

While the threshold is very high, bad behaviour may still be relevant in cases where the finances are limited. In such cases, the focus will be on meeting the needs of the parties and any children. However, behaviour is likely to carry weight in ‘needs cases’ only where that party’s award can be reduced without leaving them in a situation of real need.

Overall, arguments about bad behaviour should be approached with caution. If you think the issues discussed in this article might apply in your case you should seek expert advice from a specialist family lawyer.

Costs

Behaviour may also be considered where one party applies for the other party to pay their legal costs. Unreasonable behaviour may cause the court to order that one party pay the other’s legal costs. However, the behaviour considered must be that linked to the proceedings themselves. This may include failing to follow court orders or to make reasonable offers.

Here to Help

If you need advice on any divorce or family matter, please get in touch with Tracey Dargan, Partner and Head of Family and Divorce.

This article is for information only and should not be relied upon as legal advice. If you need legal advice on the issues raised in this article or any other family law issue, please contact a member of our team.