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Good vs Bad behaviour – Contributions vs conduct and adding back to compensate for spending


 

When is someone’s behaviour taken into account in setting the appropriate level of financial adjustment in divorce proceedings? The answer is – in comparatively few cases.

Section 25 of the Matrimonial Causes Act explicitly makes it very clear that not only financial contributions are to be taken into account. Rather than being financial the test is wider and includes “…the contributions…to the welfare of the family….including any contribution by looking after the home or caring for the family”. So as is the case for most people when the marriage has been a partnership in which each has played a part there are no specific contributions to take into account on either side.

Even when one person has created most of the family wealth unless the contribution reaches the level of “genius” it is unlikely to be taken into account on its own. Very large legal fees are often incurred by parties engaged in disputes over these issues.

So what about the other side of the coin – bad behaviour which reduces the family wealth? Usually these allegations involve very high levels of spending or recklessness. Taking reasonable business risks with family money will in practice rarely be “punished” – after all if the gamble had come off the claimant is unlikely to be arguing that the gambler alone should benefit from the magnificent judgment involved!

As a matter of policy the test to be satisfied in this and other allegations of financial shenanigans such as exorbitant spending is high so that parties do not feel encouraged to embark on costly trials examining the entrails of financial dealings. By definition the argument is about money that has gone so courts do not waste much time on that. In the recent case of BD –v- FD even when the test was satisfied because the wife had spent lavishly (and it has to be said in a way far beyond the resources of the majority of the population) the reduction in the amount she received was only 3.3%.

Ian Stirzaker

 

Ian is the Senior Partner and Head of Family Law at SME Solicitors. Please contact him or Joanna Gardner for specialist help and advice in all aspects of family law at ian.stirzaker@smesolicitors.co.uk or joanna.gardner@smesolicitors.co.uk

 

We have a dedicated microsite for these matters, meet the team who would be assisting you and watch our latest videos > http://www.worcesterdivorcesolicitor.co.uk/

 

Added: 23 Aug 2016 16:25


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