Navigating new uncertainty around conduct in divorce cases

First published in FT Adviser on 3 March 2026

‍Peter Burgess, Senior Partner and Rebecca Allen, Solicitor

It has always been difficult to explain to clients why the (bad) behaviour of their spouse will not be taken into account by the Family Courts when deciding on the division of assets following a divorce. Indeed, it can often feel very unfair. But might this be about to change? Two recent cases, heard by Mr Justice Cusworth, have directly challenged what the profession had understood to be the law on personal conduct – namely, that it is very rarely taken into account.

Conduct under the Matrimonial Causes Act 1973

Section 25(2)(g) of the Matrimonial Causes Act 1973 requires the court to have regard to “the conduct of each of the parties, if that conduct is such that it would in the opinion of the court be inequitable to disregard it”.

In practice, the courts have rarely considered it ‘inequitable to disregard’. The judiciary’s approach was summarised by Mr Justice Peel (N v J [2024] EWFC 184):

-         there is a high bar for conduct to be taken into account and that conduct must be gross and obvious;

-         there almost always needs to be a direct financial consequence for a conduct claim.

Personal conduct or the kinds of behaviour which could lead to the breakdown of relationships (e.g. drug use or infidelity) was not necessarily relevant. In more extreme cases of domestic abuse and coercive and controlling behaviour, errant conduct invariably did not meet the threshold to be taken into account. A review of the case law where conduct has affected the financial award produces a list of extreme criminality, for example the wife instructing hitmen to murder the husband (Evans v Evans [1989] 1 FLR 351); the wife forcing the husband (an elderly man) to live as a prisoner in a caravan on their property while her lover lived in the former matrimonial home (Clark v Clark [1999] 2 FLR 498); or the husband attempting to murder the wife, repeatedly stabbing her in front of the parties’ children (H v H [2006] 1 FLR 990).

For ‘wronged’ parties and the victims of domestic abuse, this is all too often seen as an unsatisfactorily high bar which is almost always impossible to reach.

Recent case law developments relating to conduct

Two judgments by Mr Justice Cusworth published in the last month have challenged the judicial approach, taking a new turn and perhaps making a conduct argument more attainable.  

LP v MP [2025] EWFC473

Mr Justice Cusworth reduced the wife’s award by 40 per cent on the basis of what he described as her “deplorable conduct”. Throughout the marriage, the wife was coercive, controlling and abusive to the husband. The marriage was founded on deception and fraud. She falsely claimed to be a High Court judge, demanding money for judicial trips and academic studies. She manipulated and lied to the husband, verbally and later physically abusing him. Mr Justice Cusworth found that although the wife’s abusive behaviour was hard to measure, that did not mean that its impact was not present. The wife’s conduct was the “‘glass’ through which to assess fairness”.

Wei-Lyn Loh v Ardal Loh-Gronager [2025] EWFC 483

The husband and wife had signed a prenuptial agreement before their 2019 wedding. Mr Justice Cusworth found that the husband’s behaviour throughout the marriage was “deplorable”, with the husband transferring significant sums to his sole name from the parties’ joint account, “preparing the ground for as lucrative a separationa s he could contrive”. Upon separation, he undermined, harassed and unsettled the wife to deter her from fighting him. He forged emails, and denigrated and criticised the wife in his evidence. The husband’s award under the prenuptial agreement was reduced twice, once on account of the marital funds he had already transferred to his sole name throughout the marriage, and again as a direct consequence of his conduct. Despite the prenuptial agreement being validly entered into, his entitlement was reduced from £6.5million to c£2.4million.

What about ‘needs’ cases?

In these two cases, the parties were high net worth individuals: the cases dealt with the sharing of matrimonial funds, and needs could be assessed generously. However, it will be interesting to see the court’s approach in cases where matrimonial funds are required to meet the parties’ needs, which is in the vast majority of financial remedy cases. The judiciary seems to be in agreement that fairness is a primary consideration but how will competing ideas of fairness be balanced? Will judges be prepared to reduce awards below a party’s need on the basis of their conduct, or will needs be prioritised in the context of all the other factors of the case? The practical effect might be that there is a ‘cut-off’ level of conduct that is bad enough to be relevant, regardless of the available resources. Equally, it may be that conduct only becomes relevant and will reduce an award at a certain level of wealth. In a reported case handed down by Her Honour Judge Reardon in February 2026, the conduct of the parties after separation in misappropriating or hiding matrimonial funds was determined not to be relevant where the parties’ needs had to be met. In England and Wales’s discretionary system, with competing approaches to fairness, the likely outcome at court is now even more uncertain.

Uncertainty within the profession

In an October 2024 report on domestic abuse by Resolution (a community of family justice professionals), 80 per cent of professionals said that domestic abuse, and specifically economic abuse, was not sufficiently taken into account in financial remedy proceedings. While the report called for a cultural shift to ensure the family courts better meet victims’ needs, practitioners were not clear on what level of domestic abuse was sufficiently serious to be relevant in financial remedy proceedings. This uncertainty was prevalent even before the very recent Mr Justice Cusworth case law further muddied the waters. Indeed, the appellate courts may need to intervene to bring the High Court judges approaches into line, but guidance is now even more essential to enable professionals properly to advise their clients.

An area of flux

In 2022 the law changed so that it is no longer necessary to cite behaviour or adultery when filing for divorce. Ironically in this post-no-fault landscape, we are being drawn back into looking at behaviour within the relationship. This is due to the broadening of the definition of abuse, and in particular a growing awareness of the impact of such behaviour that might not previously have made the threshold for conduct, such as controlling and coercive behaviour (which became a criminal offence a decade ago), and emotional and financial abuse.

Traditionally, lawyers will have advised their clients that conduct makes no difference in financial remedies and, therefore, that they should not run conduct cases. But given the recent case law, the advice may now be different, although professionals lack a clear picture of where the threshold is and whether conduct will be a factor in smaller needs cases.

For the time being, the financial remedy courts in England and Wales remain entirely discretionary. Supporters of the system say that separating couples benefit from a proper consideration of all the facts and factors when no two cases are the same. Critics say the system is too flexible, leading to uncertain and inconsistent outcomes. What professionals do agree on is the need for clarity regarding the consideration of conduct.

However, an overhaul of the financial remedy system is on the cards. In December 2024, the Law Commission published its scoping report on financial remedies, which considered a move to a codified system, including whether the treatment of conduct should be reformed. The Government is expected to launch a consultation in spring 2026. The review of the law needs to provide certainty regarding the extent to which conduct is a relevant factor in financial remedy orders and whether there is greater scope for domestic abuse and coercive and controlling behaviour to be treated as relevant conduct. If the consultation does not provide sufficient clarity, will the Supreme Court justices be prepared to hand down a judgment that determines the correct judicial approach in light of the differing judicial opinions? Perhaps not, given Sir Nicholas Mostyn’s clear statement in the House of Lords in 2000 that “judges are not legislators”.

What about prenuptial agreements?

Over the past year, judicial decisions have increasingly departed from the provision in nuptial agreements. In Helliwell v Entwistle [2025] EWCA Civ 1055, the Court of Appeal set aside the prenuptial agreement on the basis of non-disclosure by the wife. In PN v SA [2025] EWFC 141, a separation agreement was held not to be a valid agreement as a result of undue pressure. Mr Justice Cusworth’s judgment in Wei-Lyn Loh v Ardal Loh-Gronager [2025] EWFC 483, discussed above, takes matters even further by departing from the award under a valid agreement to reflect the husband’s “deplorable” conduct.

This trend runs alongside a movement towards making nuptial agreements binding, proposed in the Law Commission’s December 2024 scoping report. If valid nuptial agreements are made legally binding, how will parties’ conduct be factored in? Even where nuptial agreements are valid and legally binding, there seems room for argument to reduce a financial award on the basis of conduct, given its increasing relevance for the courts.

The practical effects

In light of the increased consideration of conduct within the family courts and the present uncertainty, parties need to be conscious of their conduct throughout their relationship, before and during the marriage, when entering into nuptial agreements, and throughout divorce and separation. Negotiations must be even-handed and there is even more reason for both parties to have an ‘equality of arms’ – a fair and balanced opportunity to present their case, evidence and arguments without disadvantage. If Mr Justice Cusworth’s decisions are followed, conduct could become the lens through which all other factors are considered, and so good behaviour is even more important than ever.

If your clients are separating and seeking legal advice, they must be prepared to have difficult and sensitive conversations about conduct with their lawyers in a way that would not have happened six months ago. A proper understanding of the specifics of their behaviour, and that of their ex-partner, will be important, if they are to receive proper counsel.

Advising with certainty in a discretionary legal system is difficult but given the increased uncertainty in relation to conduct, your clients should expect their legal adviser to tell them that litigation risk is high and, moreover, that the range of possible outcomes at court is increasing. Reaching an agreement outside of court is all the more attractive when the other side is running a conduct argument, to avoid the risk of reputational damage, as well as the costs of a protracted litigation battle.  Indeed, non-court dispute resolution could be a prudent decision from a public relations as well as a financial perspective. Conversely, for parties looking to run a conduct claim, they may be less inclined to settle out of court if there is an increased chance that behaviour may be taken into account.

What is clear is that for advisers and their clients, the Government’s consultation on financial remedies reform – which will hopefully bring much-needed certainty regarding the treatment of conduct – cannot come soon enough.

‍