10 November 2017

Taking him to the cleaners? How to set the right tone for your divorce


The lurid stories of sexual harassment and abuse that are emerging across the worlds of entertainment and politics are sure to wreck careers and relationships. Given the wide reporting of this misconduct, it is natural to assume that, should it end in divorce, the offenders' partners would somehow profit from the bad behaviour. The idea that how someone behaves during a marriage is relevant when dividing finances on divorce, is a popular one. In fact, under English law, it is only in extremely rare circumstances that that is the case.

This misapprehension can be particularly difficult for those who are in the early stages of divorce. It can be tremendously challenging for clients to set aside all the emotional tribulations that come with the end of a marriage, particularly for those who feel that they have been treated unjustly by their spouse and want it to be at least be acknowledged. However, in order to make the right decisions it is important to take advice as to whether the behaviour of the spouse is going to be relevant to finances, or arrangements for the children, and then, if it is not, put it to one side.

In the Mills/McCartney divorce both sides famously alleged that the other's conduct should be taken into account, but the judge was unpersuaded by either. The amount of costs (emotional and financial) involved in arguing about conduct can potentially be extremely disproportionate and the court is alive to that fact. In Mills/McCartney the judge refused to hear oral evidence in relation to conduct, and said: 'it would take many days, if not weeks, to hear and decide. It can make no difference to the result.'

Often it is helpful for clients to seek counselling so as to deal with the emotional repercussions of their spouse's behaviour. It might not be relevant to the legal proceedings, but it certainly matters enormously to their emotional recovery. Counselling can really help with remaining clear headed about the legal proceedings and keeping the emotional aspects of divorce separate from the legal ones.

Leaving to one side issues you have in relation to a former partner's behaviour, can be even more difficult when it comes to arrangements for children. It is important to try to think like a judge. If you cannot reach an agreement and the court becomes involved, then the judge's paramount concern will be the welfare of the children. The court has to determine what is in child's best interest. How someone behaves as a spouse does not necessarily reflect their role and value as a parent.

There is a presumption that the involvement of both parents in the life of the child will be best for the child. Of course if there are allegations of violence or indications that the child will suffer harm then the court will investigate the issues in order to ensure that the child is properly protected.

At the end of a marriage it is not at all unusual to feel vulnerable and to want to protect your relationship with your children and your financial position. Feeling angry and wanting to apportion blame can form part of that vulnerability and it is crucial to have a lawyer who will help you to see what your priorities are and how best to achieve them.

Trying to stay objective, and seeing the bigger picture (particularly in relation to children) can make an enormous difference to how your divorce progresses, both emotionally and financially, and how you feel at the end of it. Seeking advice early is always a good idea, but often the best advice is to wait until you are emotionally strong enough to make the right decisions for your and your family's future. Having a supportive, understanding, but pragmatic solicitor is essential.

There is a wealth of information and support available. For example: Resolution is an organisation of family lawyers who believe in a constructive, non-confrontational approach to family law matters. Their website (link) is accessible and helpful to those going through a divorce. Relate (link) also provides lots of information support.

Authors