How is conduct such as gambling taken into account when deciding how to divide assets upon divorce?

We are often asked the question whether gambling, by a husband or wife, is taken into account by the court when considering how to divide assets on divorce. The answer to that seemingly straightforward question is usually no, but there are some exceptions. In this blog post, Partner, Caroline Bilous, discusses how an individuals conduct is taken into account when going through divorce proceedings.

The law says that conduct is considered where it would be, in the opinion of the court, “inequitable to disregard it” and where such conduct is “gross and obvious”.

One clear example of conduct that can be taken into account is where the conduct of one party to the marriage leads to a reduction in the family assets, therefore, leaving less in the ‘pot’ to divide. However, the court must be satisfied that there has been “wanton dissipation of assets” in order to be able to punish a person for behaviour such as gambling, reckless spending or other character flaws.

The court’s decision-making process is designed to have regard to all the circumstances and give first consideration to the welfare of any child of the family under the age of 18. The court must consider the needs of each party, such as housing needs, and will only be able to redress this balance where the assets exceed the needs of the parties. It is important to remember that ‘need’ will be measured by considering the available financial resources and the standard of living during the relationship; generally, the longer the relationship the more important the standard of living will be.

If the court finds that there has been a reduction in the family assets and that the conduct of that party was “wanton”, the other party would then invite the court to add back those assets that have been taken to redress such conduct. The affect of the “add back”, if the court decides that such action is appropriate, would then increase the assets that the party responsible for such conduct would have in their possession ‘on paper’. For example, if there has been a reduction in a bank account due to one party’s conduct by £50,000 then the affect of the “add back” would mean that they would be considered by the court to already have £50,000 of the matrimonial assets and this can then be taken into account when deciding how the balance of the matrimonial assets should be divided.

In reality however, even if the court finds that one party’s conduct is so significant that it should be take into account, if the assets are insufficient to meet the needs of the parties, then it is unlikely to make a difference when a court decides what order should be made.

Therefore, whilst each case is treated entirely on its own merits and circumstances, as the law stands, a person’s tendency or addiction to gambling is unlikely to be taken into account.  If you are unsure if conduct will have an impact on your divorce settlement, then please contact our specialist team of family solicitors who are here to help guide you through.