Domestic abuse and conduct in financial proceedings on divorce in England: depressingly everyday

No fault divorce was introduced in 2022 to allow couples to divorce based on the neutral fact of their marriage having broken down irretrievably, without any requirement assign blame by accusing the other of "unreasonable behaviour". Previously, this 'blame game' could only be avoided by waiting a period of years to divorce as an alternative way of evidencing irretrievable breakdown. No fault divorce has reduced conflict, stress and costs for many divorcing couples and is probably universally acknowledged to have been a positive reform.

The place of behaviour or "conduct" in the separate financial proceedings associated with divorce remains, by contrast, a vexed issue.  However, some recent judgments have put it in the spotlight and there are some encouraging signs.

Under statute, conduct can be taken into account in the division of assets on divorce if it is conduct which it would be "inequitable to disregard" (section 25(2)(g) Matrimonial Causes Act 1973).

There are four scenarios in which conduct can make an appearance in financial proceedings:

1.    Personal misconduct by one party against the other during the marriage. 

2.    Where one party has wantonly and recklessly dissipated assets.  

3.    Litigation misconduct, where they conduct the financial proceedings badly.

4.    Failing to give full and frank disclosure.

The courts fairly readily take conduct into account in the latter three scenarios: where a party has dissipated assets, the assets (which no longer exist) can be allocated to that party in what is known as "add-back"; litigation misconduct is often reflected in cost orders where one party is ordered to pay a proportion of the other party's legal fees; and failure to disclose is a form of litigation conduct which is most often reflected in costs orders, but the court can also make adverse inferences about the existence of undisclosed assets and reflect this in the outcome.  For example, we acted for the wife in RKV v JWC [2025] EWFC 430 in which over half a million pounds was added back to the husband's share of the marital assets; and in which costs orders were made against the husband.  [The court concluded that: "The wife’s legal team have had a titanic battle on their hands. But for the professionalism of the wife’s legal team, the husband might have got away with gross injustice. The wife has needed lawyers of repute to see this through"]. In Loh v Loh-Gronager [2025] EWFC 483, the amount that a husband received under a pre-nuptial agreement was reduced from £6.5m to £2.4m because of funds he had already helped himself to from a joint account and through the use of a power of attorney.

Personal conduct is not, however, always readily taken into account. Many judges, in their interpretation of the statute, only consider it "inequitable to disregard" such conduct where it is highly exceptional and a further requirement is that it must be capable of being shown to generate a negative financial impact.  It has been said to require a "gasp factor". A "gulp" is apparently not sufficient. Examples of what the court has taken into account (and there have been very few over the course of many years) include where there has been a serious and physical attack on a spouse, attempts to facilitate suicide, and international child abduction.

In a fairly recent case of my own (N v J, [2024] EWFC 184), a civil partner lied about his cheating, infidelity, and paid sexual encounters, which my client said resulted in a severe decline in his mental health.  My client increasingly required treatment (including hospitalisation, rehabilitation, medication and Electroconvulsive Therapy) and attempted suicide on two occasions, all based on false assumptions that he was paranoid, delusional and psychotic. Yet this conduct was not taken into account. The court said the conduct "did not leap off the page as a factor for consideration in the financial remedy proceedings". The court further said that "[N] has not been able to persuade me that the conduct issue in fact adds anything to his case. The "glass" analogy, that all factors should be looked at through the glass of conduct, does not seem to me to assist as N's claimed needs are relevant regardless of cause. If, for example, a wholly innocent event had occurred to N during the relationship, with no fault attributable to J, which had caused the mental health problems now complained of, the needs claim would be identical.  Put another way, I cannot see how his conduct case would increase the award he will receive. The conduct claim would therefore not make a material difference to the outcome".

However, I have been troubled by N v J in the months since it was heard. It is not always as simple as 'needs are needs'.  Needs (for example, how much a spouse needs for housing or what their expenditure needs are going forwards) and the assessment of them is hotly debated in many financial proceedings. How generously they are assessed is coloured by all the circumstances of the case, including the resources available, the standard of living during the marriage (essentially anything mentioned in section 25(2) Matrimonial Causes Act 1973). It is not the case with any of the other factors listed in s.25 that there is an onus on a party to meet a high threshold at the outset, failing which they will be deprived of the ability to run their arguments.  So why has conduct been treated differently?

This was recently acknowledged by the court in LP v MP [2025] EWFC 473.  In that case, a wife took control of a husband's life by a combination of manipulations and untruths about who she was, and then by increasing verbal abuse, and later physical abuse. The court did not isolate a single or specific figure which represented the effect of the wife's conduct on the financial outcome but, at every stage of his assessment of what was fair, the court saw matters "through the glass of her deplorable conduct". Crucially, when it came to the wife's needs, he said "given the wife's behaviour, there is no obvious reason for their assessment to be performed with generosity". It is certainly the case that she received less than she would otherwise have received as a result of her personal conduct towards the husband.

In my view, the courts have for many years elevated the threshold for taking conduct into account beyond what the statute (section 25(2)(g) Matrimonial Causes Act 1973, as mentioned above) says. The statute says that conduct should be taken into account if it would be inequitable to disregard it. But the exceptionality test (that the conduct has to be exceptional/ elicit a "gasp") which the courts have for many years said that the conduct must meet goes beyond this. The Domestic Abuse Commissioner (which is a statutory office which aims to hold public bodies to account) recently highlighted in an October 2025 report that domestic abuse is everyday business in the family courts, which is the opposite of exceptional. Domestic abuse can sometimes take the form of a pattern of behaviour where no incident is individually exceptional but which over a period of time can have insidious effects. This means that domestic abuse is risk of being regularly and systematically excluded by the courts from their consideration of what is a fair financial outcome on divorce.

I recognise that it is very difficult for the law to strike the right balance and keep up with societal trends. But the law, for the last few years, has in my view not struck the right balance when it comes to conduct because unlike any other statutory factor, permission of the court is required in order to raise the issue. No other statutory provision has this threshold requirement and in my view it is no in keeping with the court's statutory obligations to consider all the s25 factors. This approach also puts the onus on the victim-survivors of domestic abuse (rather than on perpetrators) to prove the impact of the abuse, and also to prove it at an early stage in the proceedings when they might be at their most fragile. If they do not manage to do this, conduct has been excluded as an issue. The onus needs to be changed so that conduct is allowed to remain an open issue and given a fair hearing. There are some positive signs of change in some very recent cases, but the law is far from settled and it is an issue which deserves to be openly debated.