In recent years there has been a groundswell of opinion that the question of fault should be taken out of the equation in relation to grounds of divorce.
In England the law is to be changed to remove the option of divorce based on unreasonable behaviour, desertion or adultery. The only grounds would be based on the amount of time that has passed since separation.
In Scotland, while desertion was taken away as a ground of divorce many years ago there are no plans to abolish unreasonable behaviour or adultery.
It is undoubtedly true that taking away the idea of blaming one party or the other for the breakdown of the marriage is beneficial in so much as it is likely that the levels of conflict would reduce and that would assist discussions about the welfare of the children and negotiations about the finances.
It is also true that the fact that one party may be responsible for the breakdown of the marriage does not generally mean that the division of financial assets should be any different to the norm. This may seem counterintuitive to sum but it is certainly the case.
In the normal course of events all matrimonial assets acquired during the course of the marriage are shared fairly between the parties and fairly, usually, but not always, means equally. There are principles set out in the legislation that guide lawyers as to when the shares might not be equal and there also ‘special circumstances’ which can affect the overall sharing.
Having said all that there can be circumstances where the conduct of the parties IS taken into consideration when deciding whether an equal split of the matrimonial property would be fair.
The law is clear that the conduct of either party should only be taken into account when that conduct has affected the parties financial resources.
For the avoidance of doubt it is well established that if one party has behaved in an unacceptable and unreasonable way during the course of the marriage this would be grounds for divorce. It is only if that unacceptable behaviour has directly, adversely affected the family’s finances that the court can decide that the offending party should be financially penalised.
There is no set formula setting out what the sharing should be in this situation. Each case would be looked at on its own merits.
Looking at this situation in more detail there could be a number of ways whereby one party’s actions could affect the financial resources.
In simple terms one party could destroy an asset which would obviously reduce the parties resources.
On another level one party could squander resources, during or even after separation, on gambling drink or drugs.
In both of these cases there is a direct and immediate effect on resources and in a number of cases the courts have taken these behaviours into consideration when deciding to split the assets in an unequal way in favour of the party who has been offended against.
The most obvious example of this issue probably relates to gambling.
If one party repeatedly loses money during the relationship thus diminishing the assets this can be taken into account when the court is deciding who should receive what from the matrimonial pot.
So it can be said that fault can affect financial settlements on divorce which might be one reason why, in Scotland, the fault grounds of divorce may be here to stay.
If you think that any of the above might be relevant in your case please contact one of Rooney Family Law’s Accredited Family Lawyers.