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Divorce as a beginning

16 Sep 2022 / Family law Print

Beginning or the end?

Most people view divorce as an end, but the law treats divorce as a beginning, say Inge Clissmann SC and Ciara McLoughlin.

In divorce proceedings, the law seeks to provide separate futures for parties, without concerning itself with the wrongs of their past.

Realistically, a fault-based system would be ineffectual, as the breakdown of a marriage is multifaceted, and ‘he said, she said’ arguments are better left outside courtroom doors.

Judges take a more removed approach, and aim to decide how best to undo the binds of a contract for which the parties tied the knot, without attributing liability.

Couples often create a situation of dependency when they marry, and the key task for a judge is to decide how to divide assets in a way that facilitates independent living and provides security for the future.

Of course, the touchstone of faultless proper provision has an exception to confirm the rule.

Section 20(1) of the Family Law (Divorce) Act 1996 enables a judge to take the conduct of the parties into consideration when determining what constitutes proper provision where it would be “unjust to disregard it”.

In T v T (2002), Keane CJ endorsed the 1973 English decision in Wachtel v Wachtel, which states that it is unjust to disregard misconduct within a marriage where it is “gross and obvious”.

Keane CJ set a very high threshold for ‘gross and obvious’ misconduct, as he held that not even the actions of a husband who abandoned the family home to have a child with his mistress could be considered as marital misconduct. In his view, the course of their marriage’s demise was unfortunate, but it is not the role of the 1996 act to apportion blame.

Faultless system

On foot of this decision, judges have traditionally been very reluctant to make findings of marital misconduct, or even to entertain allegations of it.

However, three recent decisions (2020) of the High Court appear to loom large over our faultless system and, perhaps, demonstrate an increased willingness to allow misbehaviour to influence financial provision. All three judgments were handed down by Barrett J in the High Court. (One of the decisions is under appeal.)

M v S concerned divorce proceedings between parties who lived in a partitioned home. Multiple interim barring orders were obtained against the respondent, leading Barrett J to conclude that the respondent had “behaved towards the applicant in what, to put matters mildly, is so discreditable a manner as to bring himself within the ‘obvious and gross’ conduct contemplated by Lord Denning in Wachtel”.

However, he held that this finding of misconduct had no impact on the financial provision of the parties, as their means were limited, and penalising the respondent would only result in hardship.

A similar conclusion was reached in Y v Z . The husband in these proceedings engaged in appalling behaviour, including physical assault of his postpartum wife, death threats, verbal assault, and emotional abuse. Barrett J once again made a finding of marital misconduct but did not “engage in Wachtel-style reduction” due to the scarcity of funds.

A third instance of marital misconduct was found in A v B. Barrett J condemned the behaviour of the respondent as he disturbingly attempted to justify striking his wife to the court. The judge made clear that “there is no context in an intimate relationship in which domestic violence is permissible”.

It is understood that a Wachtel-style reduction was made in this case, as the judge asked how the court was to make proper provision between a model wife and a ‘husband from hell’? However, by leaving his question unanswered, it is unclear what kind of impact the respondent’s behaviour had on the financial provision ordered.

Together, these cases can be viewed as a clear triumph for women’s rights. Three women who endured forms of violence/abuse behind closed doors heard a judge call out their aggressor in court and scold them for their wrongs.

Symbolic merit?

A finding of marital misconduct can have great vindicatory purpose in divorce proceedings for the survivor, but the question remains whether, and to what extent, it should influence the financial provision between the parties.

Pragmatically speaking, misconduct generally will only be a feature of ‘big-money’ cases. If the High Court felt that it could not reduce financial provision in two of the above cases, I certainly see no place for such a finding in the Circuit Court, where the means of the parties are usually even more restricted.

Furthermore, it is regrettable that the degree to which marital misconduct should reduce financial provision was not clearly stated in A v B. It is difficult for practitioners to advise clients (be they the aggressor or the survivor) on the likely division of assets where allegations of misconduct are made, and whether it is advisable to take any settlement option proposed.

Thirdly, if the purpose of the 1996 act is to avoid a fault-based system, are misconduct allegations better dealt with in the tort or criminal sphere, where the appropriate evidence is produced and standards of proof are met?

Though these decisions certainly have symbolic merit, by virtue of fiscal punishment, the parties are borne back ceaselessly into their past.  

Look it up



  • Family Law (Divorce) Act 1996, section 20(1)

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