When the family court decides a financial remedies application on divorce (i.e. what the divorce settlement should be), it must consider a list of factors, as set out by parliament.

One of those factors is the conduct of the parties, if that conduct is such that it would in the opinion of the court be inequitable to disregard it.

Here we are talking of the conduct of the parties during the course of the marriage. Bad conduct in relation to the financial remedy proceedings can also be taken into account by the court (for example one party failing to comply with court orders), but this ‘litigation conduct’, as it is called, does not usually affect the settlement ordered by the court. Instead, it is usually penalised by the making of costs orders, requiring the party guilty of litigation (mis)conduct to contribute towards the legal costs of the other party.

Generally speaking, for conduct during the course of the marriage to affect the financial settlement ordered by the court it must be of a very serious nature. The sort of ‘bad’ conduct that one might expect in a ‘normal’ marriage (or its breakdown), such as adultery or minor incidents of what used to be referred to as ‘unreasonable behaviour’ would not be sufficient to affect the financial settlement.

Can conduct affect pension division?

If the court does find that one party has been ‘guilty’ of bad conduct during the marriage that was so serious that it should be taken into account when deciding the financial settlement, then that conduct can affect any aspect of the settlement.

And in many cases one of the most valuable, and important, assets in a divorce is pensions. Often, only the only asset more valuable than pensions will be the former matrimonial home.

Pensions are most commonly dealt with by the court by way of a pension sharing order, effectively dividing the pensions between the parties.

Now, if everything else is equal then the most common pension sharing order would be to divide the pensions equally between the parties.

But if one party has been found to have been ‘guilty’ of bad conduct during the marriage then it can ‘penalise’ that party by awarding a greater than half share of the pensions to the other party.

This was seen in action in a recent case in the family court at Medway.

Husband’s police pension

The case concerned a couple who separated in September 2016, as a result of an incident in late 2016 in which the husband, who was a sergeant in the local police force, was arrested, and subsequently prosecuted for serious offences.

Following a trial, the husband was convicted in 2018 of the rape of the wife, stalking her, and perverting the course of justice. He was sentenced to 9 years imprisonment.

Clearly, this was conduct that was so serious that the family court had to take it into account in the subsequent divorce proceedings.

The main issue in the case concerned the division of the husband’s police pension, which had a cash equivalent transfer value of £466,529. The husband also had a much smaller pension, and the wife had a relatively modest pension of her own.

In the light of the husband’s conduct the court decided to divide the pensions as to 66% to the wife and 34% to the husband, in addition to the former matrimonial home being transferred to the wife.

So it can be seen that bad conduct during the marriage can indeed affect the division of pensions on divorce.

One word of warning, however: the other party’s conduct is often raised as a reason for receiving a greater share of the matrimonial assets. However, in practice conduct rarely has any bearing upon the settlement, because in most cases it is not considered to be sufficiently serious. Accordingly, if you are considering raising conduct as an issue in your divorce case then you should first seek the advice from one of our expert family lawyers.