To what extent is an affair taken into account when dividing assets on divorce?
Over the past few days Matt Hancock’s resignation as health secretary over an affair with his aide Gina Coladangelo has played out in the full glare of the media. It is understood that Mr Hancock, a father of three, has left his wife of 15 years, Martha; his relationship with Ms Coladangelo is described as “serious”.
Partner and family law expert Caroline Bilous of the Group’s specialist family and children law practice, McAlister Family Law, looks at the implications of Mr Hancock’s conduct, explaining to what extent an affair is taken into account when resolving the division of assets on divorce.
The law, specifically the Matrimonial Causes Act 1973 section 25(2)(g), says that a person’s conduct is taken into account only where
“…the conduct is such that it would in the opinion of the court be inequitable to disregard it.”
The law contained within this key piece of legislation was supplemented by the House of Lords decision in Miller v Miller and McFarlane v McFarlane in 2006  1 FLR 1186 which provides that only in truly exceptional cases where conduct is “gross and obvious” will it be taken into account.
When is conduct taken into account?
The law in England today does not enable a court to punish a person for their behaviour and instead the process is designed to achieve an outcome that has regard to all the circumstances of the case, one that mist give first consideration to the welfare of any child under the age of 18 and only in exceptional circumstances, where the assets are in excess of need will a parties conduct have an impact upon the outcome. It is important to note that need will be measured by assessing available financial resources and assessing the standard of living during the relationship and generally the longer the relationship’s duration the more important the standard of living will be.
In 1972,Wachtel v Wachtel  EWCA Civ 10 Lord Denning made it clear that:
“The court should not reduce its order for financial provision merely because of what was formerly regarded as guilt or blame. To do so would be to impose a fine for supposed misbehaviour in the course of an unhappy married life.”
This is an extremely poignant extract and one that broadly sums up the courts approach to personal conduct today in that the role of the court is not to redress marital unhappiness and that such arguments have no place before the financial remedy courts.
In clear contrast however is where conduct takes the form of dissipation of assets by one party to the marriage causing a depletion in the assets available for division. The other party in this scenario would then seek to add back those assets that have been taken to redress such conduct.
For the court to add back assets that have been spent, the court has to be satisfied that there has been “wanton dissipation of assets”. In Martin v Martin  Fam 335, Cairns LJ said:
“A spouse cannot be allowed to fritter away the assets by extravagant living or reckless speculation and then to claim as great a share of what was left as he would have been entitled to if he had behaved reasonably.”
Bennet J in Norris v Norris  1 FLR 1142 said:
“…of course a spouse can spend his or her money as he or she chooses but it is only fair to add back into that spouse’s assets the amount by which he or she recklessly depletes the assets and thus potentially disadvantages the other spouse…”
There can also be issues of non-disclosure or a lack of financial transparency which could also fall within section 25 (2)(g) conduct.
In NG v SG (Appeal: Non-Disclosure)  EWHC 3270 (Fam), Mostyn J stated that
“…the Court must be astute to ensure that a non-discloser should not be able to procure a result from his non-disclosure better than that which would be ordered if the truth were told. If the result is an order that is unfair to the non-discloser it is better that than that the Court should be drawn into making an order that is unfair to the Claimant”.
Therefore, while each case is treated entirely on its own merits and circumstances, as the law stands, an affair itself is highly unlikely to be taken into account when dividing assets on divorce. However to understand more about your rights our specialist team of family solicitors are here to help guide you through with a breadth of experience through these complex and difficult circumstances.