​No fault divorce: doesn’t behaviour even matter anymore? by Head of Family Law, Gabbie Clasper

After a long campaign, no fault divorce is set to become the only means of divorce available to those living in England and Wales as from 6 April 2022.

The divorce process will become slightly longer but also, for some, a bit simpler. The process of making allegations of behaviour, adultery or desertion disappears.

Whilst this new law makes sense to the law makers, those separating and divorcing may have a different view. If the client has been wronged by the other party, then this must count for something? Surely?

The blame game

The definition of divorce is “the legal termination of marriage and the obligations created by marriage”.   This sounds like an administrative process like buying house insurance or arranging a mortgage.  However, the process is often, for many, an emotional rollercoaster, but entering into the process looking to blame the other person doesn’t often get things off to a good start. You don’t tend to start of negotiations in life to get what you want by causing pain to the person you are negotiating with so eliminating the blame game may make things clearer.

Many divorces involve three legal processes:  The legal process of divorce, the legal process of sorting out arrangements for your children and the legal process of sorting out the family home, other money and pensions. These things are often intertwined. The legal process of divorce is changing, but the processes relating to children and money remains unchanged.

Sorting out the house, pensions and other money and who the children are going to spend time with involve a negotiation process whether that takes place inside or out of the Court arena.

When behaviour matters

So, when does behaviour actually matter when you divorce? Behaviour remains important to how people negotiate, when they negotiate and how all of this affects any children involved.   

There are two main types of behaviour legally:

• Litigation behaviour – this can be someone not complying with Court Orders or repeatedly issuing Court applications about the same thing and then withdrawing them.  Legally this is called “litigation conduct”.  This can mean one person has to contribute to the other person’s legal costs.
• Personal behaviour – there are many unacceptable personal behaviours recognised. These could be someone deliberately transferring property to prevent you making a claim against it, spending large sums of capital savings recklessly, coercive and controlling behaviour, indecent social media posts about you, gaslighting, stalking or other forms of abuse either towards you or your children.  These types of behaviour can influence the outcome of cases relating to arrangements for children and in some cases, how assets are divided up, and in some cases, influence whether or not emergency protective orders are needed to protect you and/or your children and preserve assets.

There are several options available to couples for resolving issues relating to children and money/property when you divorce and indeed divorce sometimes isn’t the best option financially.  It is important to get the right advice to explore which option is best for you and your family and to have some idea of the legal costs involved with each process.