Historically, divorce law in England has not allowed blame-free separations. The five permitted reasons for divorce are adultery, desertion, unreasonable behaviour, and living apart for either two years in uncontested cases, or five years in contested divorces.
This is set to change on April 6th 2022 with the commencement of the Divorce, Dissolution and Separation Bill 2020, which has been pushed back from its previously planned commencement date in autumn 2021.
Even after the Bill commences, there will still be divorces and civil partnership dissolutions in which one party has acted egregiously, leading to claims that the wronged party should be entitled to a larger financial settlement.
However, is this the case? Divorce proceedings, even in court, are not a criminal trial, and it is not necessarily for the judge to determine the extent of guilt or to adjust the financial settlement according to allegations of harmful behaviour.
English divorce and the 'gasp factor'
There are circumstances in which the judge may consider one party's actions to be so clearly damaging to their spouse, that there is no reasonable doubt as to whether the financial award should be adjusted.
In Wachtel v Wachtel  EWCA Civ 10, the court judged that there should not be a 'discount' or 'reduction' in the financial settlement due to one party's behaviour, except for when that conduct is "both obvious and gross".
Sir George Baker P in W v W  Fam 107 at 110D called this the "gasp factor". In essence, if one party's behaviour is so extreme that it would make most ordinary people gasp, then it is more likely to have a bearing on the financial settlement awarded.
Ever since then, this has been the standard that has been used in numerous divorce cases to consider changes to the default financial settlement that would normally be decided under English divorce law.
Examples of the 'gasp factor'
The 'gasp factor' means financial settlements are usually only adjusted in extreme cases. Here are some examples of when the 'gasp factor' has been cited in English divorce cases.
H v H (2005)
H v H (Financial Relief: Attempted Murder as Conduct)  EWHC 2911 concerned a case in which the husband was sentenced to 12 years in prison for attempting to stab his wife to death in front of their children.
The wife, a police officer, left their home after the incident and did not return to work. The court ruled that she should be made as financially comfortable as possible and awarded her the house and contents, as well as the couple's jointly held bank accounts and insurance policies, altogether worth £180,000, while the husband was left with £30,000 in money, £50,000 of sole assets and his pension policy.
S v S (2006)
S v S  EWHC 2793 (Fam) involved a less extremely violent incident, in which the wife hit her head on a shower pole during a protracted argument with her husband. The judge Mr Justice Burton, noting a long history of such disputes and minor injuries, called the husband a "cold fish" and the wife a "drama queen".
Ultimately, he ruled that there was a "gulp factor" but no "gasp factor" and determined that the financial settlement should not be adjusted on the basis of "either conduct or compensation", allowing the husband to retain his commercial property portfolio in Telford, Dagenham, Wolverhampton and other locations in the south of England.
FRB v DCA (2020)
In FRB v DCA [No. 2]  EWHC 754 (Fam) both parties were from wealthy Indian families and had a multimillion-pound lifestyle. The husband had learned that their son, aged 9 at the time, was not his biological child and argued that he would have ended the marriage much earlier had he been aware of this.
However, the court ruled that the husband had made seriously deficient disclosures of his assets and finances, and as such determined not to alter the financial settlement, effectively holding the poor conduct of both parties in equal regard.
Can I claim financial compensation for conduct in divorce?
If you believe you have been on the receiving end of extremely egregious behaviour, such that a judge might consider the 'gasp factor' rule to apply in your case, then it may be possible to claim an increased financial settlement as a result.
This is only likely to apply in extreme circumstances, for example if you were severely injured by your partner, with lasting consequences. As can be seen from the examples given above, both parties' conduct will be considered and only the most severe misconduct can influence financial settlements in divorce.
With the help of an experienced divorce law solicitor you’ll be able to determine whether the 'gasp factor' is likely to apply, based on previous case law and recent rulings by the family law courts.
As we move into 2022 and a new era of no-fault divorces in England, the yardstick may shift again. By meeting with a divorce lawyer couples can gain much-needed confidence about the rules that will apply to their separation and particularly to their matrimonial finances and assets from April and beyond.