Family Law Misconceptions: Fairness vs fault in divorce settlements

When considering a divorce, conventional wisdom often leads people to assume that the division of assets will be impacted by the reason for the breakdown of the relationship.

The reality of the situation, however, is that divorce settlements are based on fairness rather than fault.

Put simply: the settlement isn’t meant to ‘punish’ or otherwise penalise one party for mistreatment of the other.

What factors are considered in divorce settlements?

The general rule is that the reason for the breakdown in the relationship does not directly affect how assets are divided.

Instead, the court is instructed to follow Section 25 of the Matrimonial Causes Act 1973, which outlines the key factors to consider when dividing assets. These include:

• Children’s welfare – the needs of any children take priority
• Financial needs and resources – the court considers the financial situation of both parties, including income, assets, and earning potential
• Standard of living during marriage – if possible, the settlement aims to maintain a similar standard of living for both parties post divorce
• Age and duration of marriage – typically, a longer marriage will lead to a more equal division, while settlements for shorter marriages may focus more on returning parties to their pre-marital financial positions
• Contributions (both financial and non-financial) – parties’ respective contributions as a breadwinner or homemaker are both valued when dividing assets
• Any disabilities or special needs – health conditions requiring additional financial support are considered

Personal conduct and behaviour towards the other spouse is only to be considered in exceptional circumstances, as the legislation states, if “it would in the opinion of the court be inequitable to disregard it.”

When can behaviour towards a spouse affect the settlement?

Despite fault-based divorce being a thing of the past in England and Wales, behaviour can still play a role in financial settlements in exceptional cases – these can be roughly split into two types of misconduct:

Financial misconduct (also known as ‘wanton dissipation’)

If one party has deliberately wasted or hidden assets, the court may adjust the settlement to compensate the other spouse.

Examples of this type of behaviour include:

• Gambling or reckless spending to reduce the marital pot before divorce
• Transferring or hiding assets to avoid sharing them
• Refusing to work or deliberately reducing income to avoid paying maintenance

Severe personal misconduct

The court only considers very serious conduct that directly affects finances.

Examples of this type of behaviour include:

• Domestic abuse (emotional or physical) if it has financial consequences, e.g. preventing a spouse from earning a living
• Fraud or criminal behaviour that impacts marital wealth

Outside of these extreme circumstances, behaviours that may result in marriage breakdown such as infidelity or general dishonesty will not usually affect settlements.

How does the court divide assets after a divorce?

England and Wales use a fair, needs-based approach rather than a strict 50/50 split.

• Equal division is the starting point, especially in long marriages
• If one party has greater needs (e.g., caring for children or lower earning power) they may receive more to compensate
• If one spouse has made significantly greater financial contributions to the household, this may be considered – especially in a short marriage

If you have any questions regarding separation, divorce or dissolution of Civil Partnerships, we’re here to help.

Please contact our Divorce and Family Law team on 03333 058375 or by email via family@psg-law.co.uk to speak to one of our experts.