Will My Spouse’s Behaviour Be Taken Into Account in Financial Remedy Proceedings?

The question of whether a spouse’s behaviour or conduct will be considered is one that often arises when dealing with matrimonial finances. Whilst there are different types of conduct which can be taken into account, it will only ever be introduced if it is truly exceptional in nature to the extent that it justifies moving the needle when it comes to the overall distribution of assets between divorcing couples.

At the outset, it should be stressed that very rarely will the conduct of one spouse be relevant when addressing the matrimonial finances alongside divorce proceedings. There are different types of conduct which can be taken into account under Section 25(2)(g) of the Matrimonial Causes Act 1973. It is important to seek early legal advice on the high threshold that needs to be met and the potential consequences of inviting the Court to consider conduct as a determining factor within financial remedy proceedings.

Types of conduct

Gross and obvious personal misconduct – this will depend on the unique facts of every case. For conduct to be considered, it must be serious to such an extent that, in the Court’s opinion, it would be inequitable to disregard it.

This can include domestic abuse, physical violence or threats, deception and financial misconduct. There must also be a negative financial consequence arising from the behaviour (i.e. a quantifiable financial impact). It is possible for conduct to be proved, but it might not actually be material to the final outcome.

There have been increasing calls for reform in this area. In October 2024, Resolution produced a report which stressed that there needs to be a cultural shift to better protect survivors of domestic abuse. Not long after this, the Law Commission’s Scoping Report was published, which recommended clearer rules be established on how specific forms of conduct, including domestic abuse, impact financial settlements and questioned whether the current law goes far enough.

In the last year or so, there have been cases indicating a shift in the way conduct is treated. In LP v MP [2025] EWFC 473, the Judge said there is a risk of unfairness to survivors of domestic abuse where their spouse’s conduct is not considered if there is no quantifiable financial loss directly relating to it.

The same Judge in Loh v Loh-Gronager [2025] EWFC 483 found that where one spouse’s conduct meets the threshold to the extent it would be inequitable to disregard it, this could otherwise be phrased as conduct which should be considered unless it would be unfair or unjust not to. The emphasis is placed less on the financial consequences of the conduct but rather on whether fairness dictates where one spouse’s behaviour should in all the circumstances be factored into the financial outcome.

Time will tell if the Court is going to be more open, taking conduct into account.

Add-back – this is where a spouse has wantonly or recklessly spent and dissipated assets which would and should have formed part of the assets available to be distributed between the parties.

In this scenario, provided other tangible assets remain, it may be possible to argue that the amounts spent should be added back for the purposes of the financial settlement. It is not possible for the Court to re-create physical money or assets, only to distribute the remaining assets in such a way as to effectively penalise the spouse who spent money recklessly.

Litigation misconduct – where Court proceedings have started, but one party fails to comply with the timetable and directions set. This could include failing to provide their full and frank financial disclosure, failing to attend Court hearings or failing to reasonably negotiate once the complete financial picture is known. Where litigation misconduct is identified, it is common for the Court to make a Costs Order against the party who fails to cooperate, i.e. an order that they pay the other party’s legal costs in full or in part.

The Court can draw inferences about the existence of assets of a party when they have failed to provide their full and frank financial disclosure – individuals who choose not to disclose their entire financial position risk the Court drawing inferences which could result in the distribution of assets being altered in favour of the other party.

An essential part of the Court process is for both parties to provide full and frank financial disclosure, and if one fails to do this, or attempts to conceal assets in the UK or abroad, there can be significant ramifications.

Points to consider

• If a party is thinking about raising a conduct argument, they must carefully consider whether to introduce it or drop it. Conduct arguments should be brought to the Court’s attention at the earliest opportunity. It is possible for conduct issues to arise at the beginning of Court proceedings or mid-way through. There must be evidence in support; the specific nature of this will depend on the type of conduct being alleged.
• There can be costs and consequences if the alleged conduct does not meet the high threshold. The general rule is that each party is responsible for their own legal costs in financial remedy proceedings. Where conduct arguments are raised, this is set aside, and instead, if the party raising the conduct argument is unsuccessful, they may be ordered to pay the costs of the other. Equally, if the party raising conduct is successful, the other could be ordered to pay their costs.

How Tozers can help

Tozers can advise you on whether a conduct argument is likely to succeed, what evidence will be needed, and the risks of pursuing (or defending) such an allegation. We will help you take a proportionate approach, keeping the court’s high threshold firmly in mind and focusing on what will make the greatest difference to the overall outcome.

Contact our legal experts