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Paying the Price
How doeas blame affect a divorce settlement?

This article appeared in the February 2011 edition of Westside magazine.

“I want to take my husband to the cleaners for what he’s done to me.” As a divorce lawyer this is the kind of thing I hear on a regular basis. A spouse, be it a man or a woman, with emotions running high, wants to exact financial revenge on their spouse for the emotional pain they are suffering.

The majority of these situations involvewhose fault is divorce adultery, alcohol or financial irresponsibility – often in the form of gambling.

Examples easily spring to mind. The husband who regularly gambles away his wages leaving his wife the burden of paying the mortgage and day to day bills, along with trying to stave off creditors for the gambling debts he has run up. Or the wife who has an affair with a co-worker and pushes for a divorce, yet still expects to retain the family home and have the children living with her, plus maintenance.

In both of these cases it is easy to sympathise with the injured parties. But where does the law stand on these matters, and does a person’s behaviour affect the divorce settlement?

As a general rule, the Courts do not take bad behaviour into account unless the behaviour is extreme. In cases involving children, such as the one above, the first consideration of the Courts is the welfare of the children. Many factors will influence the decision on who the children will live with, including whether one party has historically undertaken more of the day to day care than the other, the wishes and feelings of the children themselves (considered in light of their age and understanding), the likely impact of any change and who is better placed to be able to meet the ongoing future needs of the children. Depending on the finances, this could mean that the house is sold and both parties are able to go their separate ways and start again. But in some cases it may mean that the wife does retain the house, if the children are to stay with her, and this is deemed to be the best method of providing ongoing stability for the children. The Courts will not punitively penalise her for having had an affair (although the children might by expressing a preference to live with the father). It is important for children, however, that they are not exposed to or caught up in the conflicts between their parents, as such conflict would be emotionally harmful to them.

In cases involving financial irresponsibility, such as gambling, the Courts will only take this into account if the extent of the problem is judged to be ‘extreme or substantial.’ If a person’s gambling has been to the extent that it has substantially depleted the couple’s assets, then that person may not therefore be able to expect what may normally have been a half share in the remaining assets. They may be deemed to have already had part or all of their share.

In reaching a settlement, the Courts will look forward to try and achieve the most equitable outcome for both parties. It will not look backward to try and pinpoint the exact cause of the relationship breakdown so as to apportion blame.

Of course, in most marriages the causes of problems are not black and white, but are based on a number of intricate factors which an outsider could never hope to fully understand. For example, adultery may be the cause of a relationship breakdown in one case, but in another it may be a symptom of a relationship that has already broken down for other reasons. It would be impossible for the Courts to make these kind of moral judgements on people’s lives.

It is crucial to present your case in the most favourable context possible. A skilled divorce lawyer acting on your behalf can have a significant impact on the negotiations and help you to achieve the best settlement possible.

In my 17 years as a divorce solicitor, I have handled all types of family cases involving divorce, children and finances. I offer a free initial consultation to all new clients and I also undertake legal aid work.

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