When can behaviour and conduct be considered in financial remedy cases?

Wed 6th May 2026

The factors that a Court must consider

When a court determines how finances are to be distributed on divorce, there are a number of factors it must consider. Those factors are set out in Section 25 Matrimonial Causes Act 1973 and include the requirement to consider “the conduct of each of the parties, if that conduct is such that it would be inequitable to disregard it”.

There is however no statutory definition of conduct, meaning that the courts have had to grapple with what type of conduct is so serious in nature that it should be taken into account and how that conduct, if established, should be reflected in the division of the matrimonial pot and any costs orders.

In the case of OG V AG (2020) EWFC 52 four different categories of conduct were identified.

The first was gross and obvious personal misconduct such as serious violence or criminal behaviour, where ignoring it would offend the court’s sense of justice. An example of personal conduct, it would in the opinion of the court be inequitable to disregard, was in JONES V JONES (1975) 2 ALL ER 12 in which the husband had attacked the wife with the result that she was virtually unemployable.
The second was where a party has deliberately and/or recklessly dissipated assets which would otherwise have formed part of the matrimonial pot, for example through gambling, hiding funds, or wantonly spending. This is otherwise known as the “add-back” principle and there must be evidence of dissipation and the dissipation must have a deliberate element, as established in VAUGHAN V VAUGHAN (2007) EWCA Civ 1085.
The third was litigation misconduct where there has been a disregard for the duties of disclosure, dishonest presentation of the assets, a failure to negotiate, or even where a party has run a case that is bound to fail. This type of conduct tends to be addressed by penalising the guilty party in costs.
The fourth was the “evidential technique” of adverse inferences being drawn from a silence or absence of evidence where a party has failed to comply with disclosure obligations entitling the court to make findings about the existence or value of assets. This could be accepting that a party has an interest in a property which will then be included in the computation exercise, and this is an effective way of redressing uncooperative behaviour. (The computation exercise is the foundational process of identifying, valuing and totalling the marital asset base).

The recent case of LOH V LOH-GRONAGER (2025) EWFC 483 highlights how conduct during a marriage and court proceedings can sometimes be considered by a Judge when making their decision. It helpfully shows what conduct meets the threshold. Although the husband was conducting an affair, this alone would not ordinarily meet the high threshold required for conduct to be taken into account. The tipping point however was due to the husband using funds from a joint account, without the wife’s consent, to conduct his affair and fund investments and other endeavours in his name. Further to this, the husband was found to have doctored at least three emails claiming that the wife had consented to the withdrawal of funds from the joint account throughout the course of the marriage. In addition, the husband had created an Instagram page on which he posted personal photographs of the wife as well as hiring a private investigator who was instructed to pose as a journalist. The journalist would loiter outside the wife’s home, take photographs and effectively harass her during the course of the divorce proceedings. The husband’s conduct led the Judge to make the decision to reduce the amount due to the husband under the parties’ existing Pre-nuptial Agreement by over £4 million. The husband had doctored evidence and conducted the litigation in an unreasonable manner.

In the other recent case of MRU V ECR (2025) EWFC 218 the wife’s serious offending affected how the family home sale proceeds and costs were dealt with but the court still applied needs and fairness. The parties were together for around 20 years and by the time of the final hearing their children were aged 5,7 and 9. The wife had subjected the husband to domestic violence and coercive behaviour for which she served a prison term and the children lived with the husband. The Judge had to decide how the parties’ pensions and the balance of the proceeds of sale of the family home should be divided. The Judge, reflecting the wife’s conduct in the final award, granted the husband the entirety of the balance of the sale proceeds to buy a home for himself and the three children but he also made a pension sharing order in the wife’s favour to equalise the parties’ pensions, applying also the principles of needs and fairness. Further, the wife was ordered to pay the husband’s costs of the final hearing, given her conduct.

A key takeaway from MRU V ECR is that conduct is rarely relevant in financial remedy cases unless it is exceptional and unfair to ignore. The bar is set incredibly high when it comes to conduct having any sort of impact and the latest guidance is a forceful reminder that the question of whether to plead conduct or drop it should be carefully considered at an early stage and so clients will need to take advice when considering whether to raise the issue of conduct, so that they can discuss whether the threshold is met, and which of the above categories the conduct may fall into. Getting advice at an early stage is key as leaving it to be asserted later could lead to it being excluded altogether.