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Does bad behaviour affect the financial settlement in a divorce?

27th June 2021 by Jonathan Talbot

Categories: What's New?

Within a marriage or civil partnership, the concept of bad behaviour can cover a multitude of activities, from leaving the top off the toothpaste to serious or criminal activities.

One option when applying for a divorce is to claim that your relationship has broken down irretrievably.  One way of proving this is to show that your partner has behaved ‘unreasonably’.  Following the case of Owens v Owens, unreasonable behaviour must be more than the run-of-the-mill type of annoyances to be expected in a long marriage.  You must show that the behaviour was such that it would be unreasonable to expect you to stay with your spouse.

If you succeed with an unreasonable behaviour divorce it is normal that the courts will order your spouse to pay for the legal costs.  For many, allocation of the legal costs is not enough.  They think that if their spouse has behaved badly during the marriage, then this should also be reflected in the apportionment of the financial settlement on divorce.

Jonathan Talbot, head of the family law team with Laceys says ‘Many expect that if their spouse has had an affair or in some other way behaved badly in causing the marriage to end, they will be financially penalised when it comes to dividing the marital assets.  That is not normally the case, so it is important to talk to your solicitor about your specific circumstances.’

If your spouse’s behaviour or conduct can be taken into account then it may mean that you receive a larger division of the marital assets.  The court can deviate from its usual starting point of equalisation and it has the power to financially penalise your spouse for their conduct.

What misconduct is taken into account?

In certain circumstances the courts can consider the misconduct or behaviour of a spouse, provided it would be ‘inequitable to disregard’.  What is inequitable to disregard is a question for the courts based on the individual facts of a case.  Such conduct must be ‘gross and obvious’ or what one judge described as conduct that has the ‘gasp’ factor.  This is a high threshold to reach.

Conduct that will be taken into account by a court can be split into two categories; personal or financial.

Personal misconduct. 

Cases where personal conduct has crossed the threshold include illegal activities such as incest, marital rape, paedophilia, bigamy, and significant domestic violence such as stabbing or shooting a spouse.  Most of the personal conduct cases that fulfilled the criteria involved attempted murder or grievous bodily harm upon a spouse, or in one case hiring a contract killer to murder their spouse.  They are very much at the extreme of bad behaviour.

The type of behaviour which is usually cited as grounds for an unreasonable behaviour divorce petition, such as committing adultery, drug abuse, drinking to excess, or failing to engage in normal family life will rarely be a sufficient basis for the court to take into account in splitting the financial assets.

Financial misconduct

The court can consider financial mismanagement by a spouse that has caused significant detriment to the marriage.  There are several types of financial conduct that the court has considered relevant which include gambling, failing to pay tax bills, fraud and transferring assets for little or no consideration in an attempt to prevent their spouse from gaining any benefit.

If your spouse has gambled your life savings, borrowed unreasonably and excessively against the family home or has been dissipating the marital assets then the court may well reduce their claim over what assets are left.

Financial conduct is more likely to be taken into account by the court when splitting the assets.  Although this is still not common, when it is permitted the court tends to calculate a financial allowance for what it believes the offending spouse has wasted or mismanaged financially.  This is a much easier assessment for the courts than trying to come up with a figure for someone’s personal conduct.

The recent case of Finch v Baker

The recent case of Finch v Baker looked at whether a spouse’s financial conduct should impact their financial settlement.  The case involved Mrs Finch who was an executive in the BBC earning £160,000 per annum and her former husband Mr Baker who was at the time of the court case, an unemployed journalist.  Mrs Finch was the significantly higher earner, and at the time of their divorce in 2016 the couple had amassed assets worth £2.2 million.

During the court proceedings, Mrs Finch argued that her husband’s contribution to the marriage was ‘significantly negative’ and that his behaviour needed to be taken into account when looking at the division of their financial assets, which she argued were primarily the results of her efforts.  The Court of Appeal rejected this argument citing that Mr Baker’s conduct was not so bad that it would be inequitable to ignore it.

Although not an even split, Mr Baker received a sizeable financial settlement based on his needs and those of Mrs Finch who lived with the children of the family.  Mr Baker’s lower financial contribution to the marital assets was not considered to be relevant – as is the case when one spouse works less or not at all.

In conclusion

Bad behaviour, whether of financial or personal conduct does not commonly impact a divorce financial settlement.  However, when it does it will have a significant detriment to the offending spouse.

If you believe your spouse’s behaviour is so serious that it needs to be taken into account, then it is important to take early legal advice as it can be difficult to raise this at a later stage.

If you would like any further advice on family matters please contact either our Family department on 01202 377800 or or our Mediation department on 01202 377993 or

This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.

Jonathan Talbot

Partner — Family

Direct dial: 01202 377844


Jonathan Talbot
  • “Jonathan has been amazing at helping me get a resolution with my ex-husband. He was a great listener when I was getting very upset about clauses in our old divorce agreement that were not being adhered to and reacted really quickly with a letter and support. I would not hesitate to ask Jonathan for help again but please excuse me if I hope that doesn’t happen for a while as we all know dealing with ex's is never much fun! Thank you Jonathan.”

    Sharron Davies, MBE

  • “Very happy with how you dealt with my case. Many thanks for your help and advice from Mr Talbot and his secretary.”

    Jan Saad

  • “Jonathan Talbot explained the process and how things would proceed. He was very patient allowing us time to understand and adapt to our new situation. Legal language can be quite difficult to understand and he would explain what it meant and how it would impact.”

    Rae Frederick

  • “I always use Laceys for my legal work, I feel able to talk to them and I know they listen. They have always been professional and kind.”

    Dawn Aston

  • “I’d like to extend heartfelt thanks to you and Shannon for helping me through this difficult time, I am really very appreciative to have had you on my team this year, you’ve been an enormous support. ”

    Mrs W

Jonathan heads up Laceys family department with over 30 years experience in Family Law.

He specialises in Family and Relationship Breakdowns, Financial Remedies, Collaborative Law and International Family Law.

Jonathan has a exceptional caring nature and will always strive to find solutions to family issues outside of the court if at all possible.

Outside of work Jonathan likes to keep himself busy by competing in Ironman 70.3’s when he gets the chance – which are no easy feat at having to complete a 1.2 mile swim, a 56-mile bike ride, and then a 13.1 mile run each race!

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