I discovered my husband’s debts over Christmas. Now I want a divorce, but will I have to pay his debts?

Case study: In the run up to Christmas, Jane went through her and her husband’s joint bank statements. While she is going through the statements, she notices three regular payments to credit cards. When she asks Michael about the payments, he confesses that he has spent approximately £20,000 on credit cards. Jane no longer trusts Michael and wants a divorce but first wants to understand how Michael’s credit card debts will be treated in a financial settlement.

Debts on divorce are treated as either matrimonial or non-matrimonial. A matrimonial debt would usually be incurred during the marriage for the benefit of both parties. However, post-separation debts may be matrimonial if, for example, one party is still bearing the costs of the former family home in addition to paying rent on a new property. Debts which are incurred before the marriage, after separation, or solely for the benefit of one party may be non-matrimonial.   

In Jane’s situation, it will be important to understand how Michael spent the £20,000. If the debt relates to expenses for the benefit of the family, they will likely be matrimonial debts. If Michael spent the £20,000 solely for his own benefit, it could be argued that this is a non-matrimonial debt. 

Matrimonial debts will be included in the balance sheet of the parties’ assets and liabilities. Non-matrimonial debts will not be included in these calculations and will be the responsibility of the party who incurred the debt. 

The starting point for the division of assets on divorce is 50/50. However, there are situations in which a departure from equality will be justified:

• The Court will depart from equality when a 50/50 division of assets does not meet both parties’ reasonable needs. 
• If the parties’ needs can be met from an equal division of the matrimonial assets, the Court may depart from equality to reflect one party’s conduct during the marriage. 

However, Jane should be cautious because conduct arguments are rarely successful. The conduct complained of must be so serious that it would be unjust for a Court not to take it into account. The conduct must also have been financially detrimental to the other party. 

Jane could seek to argue that Michael’s conduct should take in into account by adding the money Michael spent on credit cards back into the matrimonial pot. The spending must be shown to be a “wanton dissipation of assets”. Here, the fact that the debts were accrued during the marriage makes it less likely that this would be viewed as dissipating assets. 

Even if Jane’s conduct argument succeeds, if all the parties’ resources are needed to meet their reasonable needs, as is often the case when a couple separates, their needs will take priority. 

Jane’s situation is, unfortunately, complex and she would benefit from taking legal advice from the outset to understand her position and take steps to protect herself financially.

For more information on any of the issues raised in this article, please contact Rebecca Curran, Paralegal in the Family Law Department at SE-Solicitors here, on 01295 204055, or by email at rcurran@se-solicitors.co.uk