The marriage breakdown was my spouse's fault – can I make them pay for it?
It is often the case that when a marriage breaks down one party will consider that the breakdown was caused entirely by the behaviour of the other party.
And when one party takes such a view, rightly or wrongly, their sense of justice will dictate that the other party should pay for what they have done, either by being blamed for the marriage breakdown, or by suffering some sort of financial penalty.
But is it possible to make someone pay under the new no-fault divorce system?
We will look at three possibilities: having the court blame them for the marriage breakdown, having the court order them to pay the costs of the divorce, and requesting the court to reduce the amount of the financial settlement they receive.
Can I blame them?
In short: no.
The ground for divorce (that the marriage has irretrievably broken down) may still apply, but the old ways of blaming the other party for the breakdown, whether because of their adultery, their unreasonable behaviour or their desertion, do not.
All that is required now is a statement from one or both parties that the marriage has broken down, and the court will simply accept the statement as proof that the marriage has indeed broken down.
The court is therefore no longer concerned about the reasons for the breakdown of the marriage, and accordingly will not attribute blame.
Can I make them pay the costs of the divorce?
Divorce proceedings are not cheap, even if you do your own divorce, without instructing a solicitor. For example, there is a court fee of £593 just to issue the proceedings.
Under the old divorce system asking the court to order the other party to pay your costs of the divorce was one way in which they could be 'penalised' for causing the breakdown of the marriage.
The logic behind this was that if the court found that the breakdown was due to the other party's conduct, such as their unreasonable behaviour or adultery, then it followed that they should be responsible for the costs of the divorce.
But all that changed with the introduction of no-fault divorce.
Whilst it is still possible for the party issuing the divorce to ask the court to order the other party to pay their costs, the court no longer makes findings about the responsibility of either party for the breakdown of the relationship.
Accordingly, the scope for the making of costs orders is now very limited, and in the vast majority of cases a costs order would be inappropriate.
Only where additional costs have been incurred, for example because the other party attempted to evade service of the divorce papers, or where there is a dispute over whether the court has jurisdiction to deal with the divorce, is the court likely to consider making a costs order.
What about them getting a smaller settlement?
The last possibility is that the party responsible for the breakdown of the marriage is penalised for that fact by receiving a smaller divorce settlement.
It is true that the conduct of a party may have a bearing upon the financial settlement.
However, the conduct must be particularly serious. 'Normal' levels of misconduct that often occur when a marriage breaks down, including adultery, will not usually be considered sufficiently serious to have a bearing.
The types of serious misconduct that might have a bearing could include a serious physical assault, or conduct that seriously depletes the parties' assets, for example heavy gambling, or fraudulently re-mortgaging the former matrimonial home. Obviously, cases in which such things occur are relatively rare.
In conclusion, the law now provides no opportunity for one party to blame the other for the marriage breakdown, and few if any opportunities to make them pay for it. Certainly, anyone considering seeking any sort of 'retribution' for the breakdown of the marriage should first take expert legal advice.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.