Misconduct and its application to matrimonial financial remedy.‘The Gasp Factor’
As a starting point, the Matrimonial Causes Act 1973 s.25 allows for, among other provisions, the law to consider the personal misconduct of one of you within the marriage and indeed during separation as an aggravating factor when determining how assets within the marriage are distributed fairly between you, to cater for your respective needs and those of any children.
Definition of misconduct in a marriage
There is no specific definition of conduct such that it would be unfair to disregard it, for example, what element of domestic abuse is considered serious enough in relation to determining how it affects the distribution of assets, but the law has become more sophisticated by the application of the definition of this in court-based decisions since the statute was enacted in 1973 to date.
‘The gasp factor’
So, we now have what is measured as misconduct having to have what has become known as the ‘gasp factor.’ It has to be considered ‘gross and obvious.’ That doesn’t define it either, so the approach would be to compare the particular conduct as to whether it is objectively considered serious enough and then whether the adverse effect, if any, of the behaviour flows to the recipient’s consequential financial difficulty, which then ought to be compensated by the perpetrator proportionately to the conduct that has arisen.
For example, if you have experienced coercive control by your spouse, the court will examine how this has impacted your ability to access or even be aware of the assets in the marriage, as you may have been manipulated into not knowing.
Another would be where you have suffered violence and the cumulative effect that this will have if, say, your spouse subsequently leaves the property and does not contribute nor will contribute to the financial upkeep of the house, which means that financially you are suffering and the loss of ability to pay the mortgage and managing to keep the home is at risk.
Remedies
The question then of course is convincing the court, if it comes to that, to agree that the conduct is serious enough (it is a high bar) and then whether that conduct has placed you in a financial disadvantage, and to what extent.
If the court is not satisfied with the first stage, then we must instead concentrate on all of the other factors that the law attributes to fair division of assets between you, taking into account your disadvantaged financial circumstances, but without perhaps even the need to consider the conduct of your spouse, when in fact you can still be compensated fairly regardless.
Matrimonial financial relief can seem very daunting, particularly in the circumstances you might find yourself in during separation. If misconduct in matrimonial financial remedy is a factor in your case, such as domestic abuse or coercive control, it’s crucial to understand its impact on asset distribution. Please do not hesitate to contact one of our experts in the family department, who will be on hand to discuss your situation in an initial free half-hour appointment.