When does conduct count in a divorce?

Conduct and behaviour can be relevant to a number of different issues that arise in a divorce, but perhaps not always to the extent some might expect.

Financial claims

While it could feel unfair, one party’s decision to unilaterally end the marriage and walk away; or to form an adulterous relationship, has no bearing on the financial aspects of the divorce. Both spouses remain equally entitled to share in the matrimonial assets, even if it leaves the innocent party financially much worse off than if they had stayed married.

A party may have behaved in an entirely unacceptable and reprehensible way over the course of the marriage, but so far as finances are concerned, Scots law only takes into account conduct if it has adversely affected the financial resources of the parties or, in terms of claims for spousal support post-divorce, it would be manifestly inequitable not to do so; and the bar is set high when looking to establish that.

In short, Scottish courts do not typically use the financial settlement as a way to punish wrongdoing, unless there is a clear, negative financial impact.

Poor financial judgement or lack of investment savvy resulting in a diminished pool of matrimonial assets, would not usually be enough to justify a claim for a greater share of the couple’s assets.

However, where conduct can successfully be relied upon to justify that, includes –

deliberate or reckless destruction of assets
dissipation of assets – deliberately giving away assets or transferring ownership to someone else without receiving any or fair payment for them
squandering of wealth - substantial gambling or excessive spending on drink and drugs
in a claim for spousal maintenance where the conduct had a direct and serious impact on the other spouses physical or mental health resulting in their inability to support themselves.

Grounds for divorce -

There is one ground for divorce “irretrievable breakdown of marriage” but 4 different ways to prove that, 2 of which involve conduct and behaviour. Adultery and “unreasonable behaviour” can both be relied on to raise immediate divorce proceedings, but third party evidence will be needed in the form of a Private Investigators Report or witnesses who can speak to the behaviour complained of. Unreasonable behaviour can include a wide variety of conduct and behaviour including, for example:

physical, financial or emotional abuse
excessive spending
excessive drinking or drug taking
humiliation, intimidation or constant criticism
refusal to contribute to family life
not engaging with the other spouse’s family and friends
not being supportive of the other spouse’s career

Protective orders

As would be expected, conduct and behaviour is of paramount importance when looking at whether the court might be asked to grant orders that have the effect of keeping one spouse away from the other or their home (interdicts; non harassment orders) and/or excluding a spouse from occupation of the family home (exclusion orders). Generally, there must be evidence that the conduct is, or is likely to be, injurious to the physical or mental health of the other spouse or the children, or that it causes fear, alarm and distress.

Child arrangements

The paramount consideration is what is in the best interests of the child and their welfare is key. Conduct and behaviour can therefore have a direct impact on what arrangements for a child’s care are appropriate. The impact of conduct and behaviour directed at the child’s other parent can also be relevant and taken into account when determining what arrangements are best for the child.

Expenses in court proceedings

Where a spouse has acted unreasonably in the conduct of the divorce action itself, such as deliberately delaying progress, or failing to make full disclosure of their assets, can be a basis to seek a court award of expenses against them, to recover the cost of legal expenses that have been incurred by the other spouse.

Final outcomes

While bad behaviour that ends a marriage doesn’t usually result in direct financial penalty, how spouses behave towards one another before, and after, separation can make a huge difference to how amicable or acrimonious their divorce is. Adopting a respectful, considered approach and being mindful of shielding the children can go a long way towards reducing legal expense, achieving agreed outcomes and avoiding court intervention.