Bad Behaviour in Divorce – When does it matter?

An outline of when the Court will consider a party’s conduct in deciding the appropriate division of financial resources on divorce.

At Blanchards Law, we know an ex-spouse’s behaviour during divorce can be frustrating. But when does it matter to the Court? We explain how bad behaviour can affect your divorce and when it is legally relevant. This also shows its practical impact on proceedings.

What are “Section 25 Factors”?

These are the key factors that a Court can take into account when considering how to divide the parties’ assets on divorce. These factors are listed within section 25 of The Matrimonial Causes Act 1973. They comprise such matters as income and other financial resources, needs of the parties and standard of living. The Court can also consider parties’ ages and any disability. Additionally, it can consider contributions and the welfare of any young children.

Conduct is also included in the factors, but the threshold for the Court to consider it is very high. It must be so significant that, in the opinion of the Court, it would be inequitable to disregard it. So, what does this really mean?

It can be conduct during the marriage, or after the separation – during the divorce/dissolution proceedings. Furthermore, how bad behaviour can impact your divorce is closely related to the Court’s interpretation of conduct.

Most commonly, the court will look at financial misconduct or litigation misconduct. Issues such as whether there has been coercive control in a relationship are not normally taken into account by a judge.

Financial Misconduct

Dissipation of Assets

The Court most often considers conduct of a clearly financial nature. This is typically where one party’s actions reduce the marital asset pool. Examples include large personal spending, gifting joint funds, gambling losses, excessive luxury expenses. Or deliberately selling assets below market value. Importantly, how bad behaviour can impact your divorce becomes obvious when these actions lead to a diminished asset pool.

What does ‘Wanton’ mean?

Dissipation must be more than mere spending; it must be “wanton,” usually interpreted as reckless—acting without regard to the outcome.

However, substantial spending may be reasonable if it does not affect the parties’ standard of living. For example, in F v F [2012] EWHC 438 (Fam), the husband gave significant gifts to children from a previous marriage. The wife claimed he aimed to reduce her claim. The Court found his actions reasonable. This was because he was also giving to his younger children and wife.

Even seemingly reckless conduct may not be considered wanton. Courts consider the context and the person’s motivations. Spending may be irresponsible by ordinary moral standards, but if it is not intended to diminish the other party’s claim, it is not punishable. Thus, courts do not compensate for poor decision-making. Also, they do not compensate for personal flaws.

In MAP v MFP [2015] EWHC 627 (Fam), the wife claimed the husband’s weekly £6,000 cocaine use and other spending on sex workers constituted wanton dissipation. The Court held it morally questionable but not deliberate or wanton. The wife had to accept his personality flaws.

Finally, there must be a direct link between the dissipation and any reduction in the assets available to the parties.

Add-back – a remedy for dissipation.

If you argue that the other party has dissipating the marital assets, you may wish to seek the funds to be ‘added back’ into the pool of resources. This means that the court will pretend that the assets which have been spent are still there. In this way, the Court will ensure that the innocent party receives the sum they would have received had the resources not been dissipated. It does this by taking the necessary funds from the other party’s share to meet the shortfall.

The Court’s primary concern will always be to meet the reasonable needs of both parties. Such as ensuring both can adequately rehouse and meet their day to day living expenses. Only in cases where there are resources to be distributed beyond what is necessary to meet these needs will the Court be able to use an ‘add back’ in this way. As you can see, how bad behaviour can impact your divorce is often determined by how the Court values fairness and equity.

Litigation Misconduct

This refers to conduct during Court proceedings, rather than financial matters, that amounts to litigation misconduct. Examples include:

• Causing the other party excessive legal costs through repeated correspondence or calls.

• Failing to comply with Court Orders.

• Pursuing actions that delay or obstruct settlement.

• Being dishonest, such as withholding financial information or concealing assets.

If serious, the Court may order the guilty party to pay some or all of the innocent party’s legal costs.

Failure to negotiate

This is a growing area as Courts can now order costs against parties who unreasonably refuse to engage in Non-Court Dispute Resolution (NCDR). With a significant backlog of cases, the Court encourages mediation, collaborative law, or arbitration to save time and reduce costs. Parties who litigate minor issues unreasonably may face costs orders.

Other conduct

Non-financial conduct is rarely considered by the Court and must be extreme for it to be “inequitable to disregard.” When the conduct is not financial—such as physical abuse or coercive control—the Court focuses on its financial impact, like reduced earning capacity due to health or mental health issues, which must be supported by medical evidence.

The Court will only take non-financial conduct into account if it is so severe that ignoring it would result in significant unfairness.

Remedy for Conduct

Costs Orders

Where conduct is not enough to impact the final amount of the distribution of the financial resources, it is still conduct that can be considered by the Court. It can be reflected in costs. This means that the party who has transgressed, in the eyes of the court, can be ordered to pay the other party’s costs.

In complex cases, particularly where there has been dissipation of the financial resources, it may be necessary to obtain the help of a forensic accountant to trace the dissipated funds.

If you would like to discuss ‘bad behaviour’ in regard to financial arrangements, make an appointment with one of our experienced family law specialist solicitors here