Clare Curran

One aspect of divorce that surprises many clients when they come to discuss a marriage breakdown is how bad behaviour on the part of their spouse, perhaps in the form of an adulterous relationship or some other form of unreasonable behaviour, is looked at specifically in terms of division of the matrimonial assets. In many scenarios, the courts take the view that such behaviour will have little to no bearing on the financial settlement, which can be difficult for a spouse, who feels wronged as a result of their partner’s conduct, to hear.

The legislation which governs the division of finances on divorce in Northern Ireland is the Matrimonial Causes (Northern Ireland) Order 1978 which sets out that the courts must have regard to a number of factors; one of those being 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”.

So what does this mean in practice? Lawyers advising in this area look to decisions from the courts as to what behaviour has been held to be inequitable to disregard and indeed what behaviour has not. When looking at the case law, it is clear that, in those cases where conduct has been taken into account, it is rarely, if ever, the key deciding factor in determining the overall split of the assets. The Matrimonial Causes Order in fact specifies eight factors to which the court must have regard, and first consideration is to be given to the welfare of any minor children of the parties.

So when do the courts consider that conduct is deemed to be relevant, or more precisely “inequitable to disregard”? The case law demonstrates that mere bad behaviour is not enough, rather some ascertainable detriment usually needs to have resulted from the behaviour to have an impact on distribution of assets. One such example was a case wherein a husband was sentenced to imprisonment for a violent assault on his wife. The court held that the assault could not be overlooked in determining the financial split as this was linked with the fact that he had rendered himself incapable of financially supporting the family and therefore it would have been inequitable to disregard it. Similarly, in a case where an assault on a wife resulted in a reduction in her earning ability, this too was determined to be a relevant factor by the courts in determining the award to the wife.

Cases where the conduct of one party has had a clear and detrimental effect on the finances of the parties are generally speaking more readily considered a relevant factor, such as deliberate dissipation by one spouse of the family’s assets. Additionally cases involving litigation misconduct, such as where efforts are made by one party to deliberately withhold information about the extent of their financial interests or to hide assets from their spouse, may also be considered as facts which are “inequitable to disregard” and thus result in a reduction to the wrongful party’s award, or at least an Order to pay their spouse’s legal costs.

Each case will turn on its own facts, so it is important for couples to take legal advice from a solicitor who specialises in this field in order to be fully appraised of how a court is likely to determine the division of their finances.

• Clare Curran is partner and head of the matrimonial department at Worthingtons Solicitors in Belfast. You can view her profile here.