Wednesday, October 03, 2012

Family Lore Clinic: Can behaviour affect a divorce settlement?

Many people going through divorce believe that they should receive a larger financial settlement because of their former spouse’s behaviour (in the rest of this post I will use the term 'conduct'), but is this the case?

The answer is that conduct is one of the factors that the court should take into account when deciding the financial settlement, but only if the conduct is so serious that it would be unfair for the court to disregard it.

In practice this means that it is actually very rare that conduct has a bearing upon the settlement. Certainly, adultery and most forms of unreasonable behaviour will normally have no bearing upon the settlement (although they may have a bearing upon who pays the costs of the divorce itself).

To have a bearing upon the settlement the conduct will have to be of a very serious nature. An example of a case where conduct was taken into account was where the husband was convicted of attempting to murder the wife. On the other hand, in another case the husband was convicted of assaulting the wife, but this was held not to be sufficiently serious to affect the settlement.

Note that conduct during the course of the financial remedy proceedings, such as failing to cooperate or comply with the requirements of the court, is not usually penalised by a lower settlement, but can be penalised by an order that that party pay a contribution towards the other party’s costs.

Pursuing an unreasonable claim for conduct to be taken into account could also result in the claimant being penalised on costs, as well as having to pay the additional costs that they would have inevitably incurred themselves. Accordingly, anyone should consider the matter very carefully before making such a claim, and certainly taking good legal advice could save considerable expense in the long run.

(Note that this is necessarily a simplification of the law. If you require more details or specific advice, you should consult a specialist family lawyer.)


  1. John,

    Is the case you referred to Wachtel v Wachtel [1973]? I think the term used to describe the conduct was "obvious and gross."
    There was also Kyte v Kyte [1987] where the wife was rather pro-active in a suicide attempt by her depressed husband. Even that conduct only reduced her lump sum on appeal.
    There was another (Evans v Evans?) where the husband got an order discharged after she was convicted of incitement to murder him.
    I know it's wrong to laugh but....


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