No Fault Divorce: Will “Behaviour” Manifest in Other Ways?

The introduction of no fault divorce removes the need for one party to blame another and intends to help separating couples deal with separation in a constructive manner. 

The law before no fault divorce 

Before the introduction of no fault divorce, the court could not make a finding of irretrievable breakdown of the marriage unless satisfied with one of the five facts listed in the Matrimonial Causes Act 1973:

• Adultery
• Unreasonable behaviour
• Desertion
• Two years separation with consent 
• Five years separation

No fault divorce 

The introduction of no fault divorce removes the requirement to establish one of the five facts above, and couples can apply for a divorce without assigning blame. It is now possible to apply for a divorce or dissolution of a civil partnership by providing a simple statement of irretrievable breakdown. 

When couples are going through a marriage or civil partnership breakdown, it is a highly emotive time. One party may blame the other if there has been adultery or if that party does not want to separate. 

One party may feel that the outcome of the financial settlement should reflect the fact that their spouse or civil partner has behaved badly or left the marriage. Many spouses will feel that if they did not ask for the divorce, then they should not be affected financially. 

The reasons for the breakdown of the marriage very rarely impact the financial settlement, so raising allegations of unreasonable behaviour or adultery will rarely be a sufficient basis for the court to consider when dividing the financial assets. 

Can behaviour be taken into consideration when sorting out the finances?

The courts are extremely reluctant to examine the causes of a marital breakdown. When considering the division of the finances on divorce or dissolution of a civil partnership, conduct will only be taken into consideration if it would be inequitable to disregard it.

Conduct is a factor that is taken into consideration under Section 25 of the Matrimonial Causes Act 1973 when the court considers making a financial award. 

It can be tempting for parties to try listing details of each other’s behaviour when considering the division of the assets during divorce, but it is rarely the case that conduct is relevant within financial order proceedings. 

What one party might consider to be the bad behaviour of a spouse or civil partner, such as adultery, is usually immaterial as to the amount of financial provision ordered. 

Types of conduct that the court might consider include but are not limited to the following:

• Reckless dissipation of matrimonial assets
• Litigation misconduct
• Non-disclosure of assets 

Can behaviour be taken into consideration when sorting out the arrangements for the children?

When considering the arrangements for children, the starting point is that it is important for the children to have a good relationship with both parents unless there are clear reasons as to why this would not be safe or in their best interests.

At Myerson, the family team are all members of Resolution, an organisation of family law professionals committed to adhering to the Resolution Code of Practice which promotes working constructively to avoid unnecessary conflict.

Here to help

If you are thinking about separating, we can help you to focus on achieving an outcome that works for you and for the future of everyone involved. If you have any more questions or would like more information, please get in touch with a member of our Family Law Team below.