Of course marriages break up for a whole number of reasons.  It is important to bear in mind however, that when it comes to sorting out the finances, in most cases the court is not interested in deciding whose fault it was.

Many people think it is unfair that the court will not take into account who was responsible for the end of the marriage, when the court is deciding how to divide up the assets.  For example:

A Husband may say: “why should she take half the house?  She’s the one who had an affair”.

A Wife might say: “why should he have half the house?  He’s the one who had an alcohol problem.”

There are a number of reasons why the courts are not interested in hearing evidence about these points:

• There are too many cases before the court and not enough time.  If the court got involved in deciding whose fault it was the marriage broke down there would not be enough time to hear all of the cases;
• The court’s task is usually to decide how to divide up the assets so that both parties have somewhere to live and some money to live on.  Deciding whose fault the breakup was does not help with that.
• Even if the court did decide to try and get to the bottom of whose fault the break-up was, where would the court start?  Take the examples above.  The Wife may says she had had an affair because the Husband was not a good Husband.  The Husband may say he had an alcohol problem because the Wife was not a good Wife.  Deciding who was really to blame would often involve resolving arguments about things going back years and years.

Because of these concerns, for a court to take conduct into account the facts have to be quite unusual.  The matrimonial Causes Act 1973 says that when it is making orders about the finances the court must consider all the circumstances of the case (section 25 of The Act).  However, section 25 goes on to say that the court shall have regard to a whole number of factors, including:

“…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.”

That is obviously not that helpful.  What conduct would be inequitable to disregard?  Thankfully there are now quite a number or decided cases about this subject.

Dealing first with what we might call “non-financial conduct”, the general position is that to be taken into account the conduct has to be “obvious and gross”.  In another case it was said that the conduct complained of should cause someone hearing about it to respond with a gasp rather than just a gulp.

It is conduct which has a financial result on the parties which is more likely to be taken into account when the court is deciding how to divide the assets.  For example a court might take into account the following:

• A serious offence committed by a Husband against his Wife; or,
• A serious offence committed by a Husband against someone other than the Wife.The offence resulted in the Husband being sent to prison or he lost his job or his employment prospects were damaged; or,
• Reckless spending.