Spousal behaviour before the divorce is not taken into account during ancillary relief or a financial settlement after divorce. Marital assets are divided according to needs and the Court has wide discretion to interpret and decide on how the financial settlement is reached. Even where the divorce was granted on grounds of adultery or unreasonable behaviour, spousal conduct is not taken into account when considering ancillary relief. This means spouses may agree to admit adultery or may agree to a divorce petition for unreasonable behaviour to avoid a separation period of at least two years and allow the divorce process to be started sooner.
However, spousal behaviour during the ancillary relief proceedings may have an affect on costs. Generally legal costs during ancillary relief proceedings are paid by each spouse to their own legal advisors and solicitors and no award for legal costs is made. Even where spouses cannot agree on the division of marital assets or levels of child or spousal maintenance, where both have made full disclosure of their finances, then each side paying their own legal costs is reasonably fair.
But where one spouse is deliberately frustrating the process by failing to make a full and frank disclosure of finances, raising petty issues around the disclosure of their spouse’s finances, making unfair offers to settle or is deliberately drawing out the legal process to make proceedings as lengthy as possible, what happens?
Firstly, by adding to their own and their spouse’s legal costs, the spouse causing deliberate delays is reducing the amount of marital assets available for division, effectively reducing their own share of the pot.
Secondly, the Court may consider making a costs order for breach of the Family Proceedings Rules and pre-action protocol. Under Rule 2.71 (4) (5) of the Family Proceedings Rules, the Court must take into account:-
• failure by any party to comply with these Rules;
• any open offer to settle made by a party;
• whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue;
• The manner in which a party has pursued or responded to the application or a particular allegation or issue;
• Any other aspect of a party’s conduct in relation to the proceedings which the Court considers relevant;
• The financial effect on the parties of any costs order.
If there is evidence that the spouse trying to frustrate the legal process has breached the above and caused additional, unnecessary legal costs to be incurred by the other spouse who has complied, then it may be possible to ask for a costs order.
If the Court agrees the spouse frustrating the legal process has committed litigation misconduct, it will consider making a costs order. There are two types of costs order:-
1. Party and Party costs – only covers costs reasonably incurred in the proceedings so may not cover the full legal costs involved;
2. Indemnity Costs – will cover full legal costs involved in the proceedings.
Lawson-West always strongly recommends that spouses do make a full and frank disclosure early in ancillary relief proceedings and enable proceedings to continue in a timely manner. However, if one spouse is deliberately frustrating the legal process, they will find that not only have they reduced the marital assets available, so reducing the amount of their own share, but could find an order for costs made against them.
If you are considering divorce or separation or are concerned about ancillary relief proceedings, please contact James Haworth on 0116 212 1080 or Janet Hopkins or Alistair Dobson on 01858 445480 now or complete one of the on-line forms. James is a member of the Leicestershire Regional Committee for Resolution, an association of legal professionals working to reduce conflict in separation and divorce.
