Allegations of misconduct are common in financial remedy proceedings, but only the most serious behaviour has traditionally influenced the final outcome. The courts have long taken a cautious approach, emphasising that financial remedies are not about revisiting marital wrongdoing but ensuring a fair and practical division of resources.
We’ve been tracking recent case law, and here we explore the traditional position, emerging judicial trends, and whether a more context-based approach – particularly in cases involving domestic abuse – may be developing.
The different types of conduct
The courts draw clear distinctions between categories of conduct, each with different evidential requirements and consequences.
Gross and obvious personal misconduct
This is the most significant category for financial remedy claims. It includes behaviour so serious that the court considers it unjust to ignore it. Examples include:
- Attempted murder
- Serious physical assault
- Prolonged coercive control
- Economic abuse
- Conduct causing severe psychological harm
Only conduct that meets a very high threshold is likely to affect the outcome.
Wanton or reckless dissipation
Where one party has irresponsibly wasted or given away assets, the court may “add back” the value to that party’s side of the asset schedule. This does not amount to a moral judgment but as an accounting exercise designed to restore fairness where assets have been unreasonably depleted.
Litigation misconduct
Litigation misconduct includes ignoring court orders, causing unnecessary hearings, refusing to engage, or taking unreasonable positions. While this may result in costs orders, it rarely affects how assets are divided. The court generally addresses such behaviour through the costs regime rather than by adjusting the financial award.
Nondisclosure or dishonesty
This includes concealing assets, misrepresenting income or liabilities, manipulating documents, or otherwise misleading the court. In such cases, the court may draw adverse inferences or adjust the final award to correct the imbalance created by the dishonesty.
The traditional position: a very high threshold
Section 25(2)(g) of the Matrimonial Causes Act 1973 permits the court to consider conduct if it would “be inequitable to disregard it”. Despite the seemingly wide scope of the statute, the courts have interpreted this provision narrowly. The authority of Wachtel v Wachtel established that conduct must be both gross and obvious before it has any bearing on the outcome.
Judges generally maintain a forward-looking approach. Their priority is the parties’ future needs, not revisiting marital grievances. Affairs, arguments, unkind behaviour, and general relationship conflict, while upsetting, almost never influence the financial outcome. The overarching aim remains fairness and the ability of both parties to move on.
When conduct may be relevant
Although the threshold is high, there are cases where conduct plays a material role. These usually involve behaviour that has:
- Directly caused financial loss, or
- Had a profound and lasting impact on the victim’s health, earning capacity, or overall circumstances
Examples include severe assaults resulting in disability or sustained behaviour preventing one party from maintaining employment or career progression.
In such cases, the court often reflects the impact of the behaviour indirectly, for example, by adjusting the award to meet increased housing needs or reduced earning capacity.
Recent judicial developments
Recent judgments have prompted discussion among practitioners about whether a more nuanced approach to conduct is emerging.
Loh v Loh Gronager [2025] EWFC 483
In this case, the court took a broader view of conduct. The husband had withdrawn substantial funds from joint accounts to fund personal investments and an affair, and later engaged in serious litigation misconduct, including falsifying emails and attempting to intimidate his wife.
The judge found this behaviour undermined fairness and the integrity of the process, concluding that it would be unjust to uphold the prenuptial agreement in full. The result was a significant reduction in the husband’s award.
LP v MP [2025] EWFC 473
In this case, the wife’s sharing entitlement was reduced by 40% due to sustained deception, fraud, and coercive and controlling behaviour towards the husband. The judge described this conduct as the “glass” through which fairness had to be assessed, leading to a significant departure from equal sharing.
These cases suggest a developing willingness to engage more fully with conduct-based arguments where the behaviour has far-reaching consequences.
Are the courts moving in a new direction?
It is too early to conclude that the traditional test has shifted. Judges continue to discourage unnecessary conduct allegations, and the threshold remains high.
However, there are signs of a more context sensitive and trauma-informed approach, especially in cases involving coercive control or sustained abuse. The broader reform landscape in financial remedies may further influence future judicial attitudes.
Practical points for practitioners
Raise conduct early
Any intention to rely on conduct should be identified promptly, including within Section 4.4 of Form E.
Set out detailed evidence
The alleging party must provide a clear account and specify the supporting evidence.
Expect scrutiny at the First Appointment
Conduct will be treated as a case management issue, and directions will only be given where allegations reach the necessary seriousness.
Consider whether conduct is needed at all
In many cases, the consequences of the behaviour can be addressed through needs or sharing principles without running a formal conduct argument.
The courts have long set a high bar for allowing conduct to influence a financial award, and that threshold remains firmly in place. However, recent judgments demonstrate increasing judicial awareness of how abusive or manipulative behaviour can shape a party’s long-term circumstances.
The direction of travel suggests a more nuanced approach, while maintaining the core principle that the parties’ housing and income needs remain paramount. Even serious misconduct will rarely justify an outcome that leaves either person without basic financial security, reflecting the central purpose of the Matrimonial Causes Act 1973.
Our Family Law team will continue to monitor these developments closely and advise clients on how evolving case law may impact conduct arguments in future financial remedy proceedings.
