Whenever a client facing divorce first consults with me, seeking to navigate the complexities of their relationship’s dissolution, they often arrive burdened by profound wounds—betrayal, anger, and grief. They naturally hope that the court will acknowledge their suffering and allow it to influence the financial outcome. Yet, I must invariably deliver a sobering reality: the law seldom gives weight to the narrative of personal pain. It requires conduct to reach a threshold of being “gross” or “outrageous” before it bears any relevance. For many, this disconnection between the ideals of justice and lived experience proves a difficult and disheartening truth to accept. But the problem is, how can a system focused on numbers truly measure the weight of years of emotional damage? For many, this gap between justice and reality is a bitter pill to swallow.
In an era where the complexities of human relationships are better understood than ever before, the law governing financial settlements on divorce remains rooted in a framework created over half a century ago. The conduct of separating spouses can, in theory, affect the outcome of financial remedy proceedings—but in practice, it rarely does. Many clients assume that betrayal, dishonesty, or abuse will significantly influence their settlement, only to discover that the law often turns a blind eye unless conduct reaches a narrowly defined threshold of severity. In N v J [2024] EWFC 184, Peel J reaffirmed that domestic abuse and personal misconduct must be exceptional to be considered. Even with clear harm, the court said that “the increasing awareness of the incidence of domestic abuse… does not lower the conduct hurdle”
This reluctance to consider a broader spectrum of human behaviour stems from the Matrimonial Causes Act 1973—a statute that reflects the social norms of a very different time. While courts remain bound by the principles enshrined in that Act, there is growing recognition that this aspect of family law may be due for a rethink.
Statutory Framework for Financial Remedy Proceedings
Financial remedy proceedings are governed by section 25 of the Matrimonial Causes Act 1973, which sets out a list of factors the court must consider when dividing assets. These include:
- The welfare of any children (as the first consideration)
- The financial needs and obligations of each party
- The standard of living during the marriage
- Age and health
- Contributions to the family
- And, under section 25(2)(g), conduct
However, this final factor—conduct—is treated with extraordinary caution. The statute states that conduct should only be considered if the court believes it would be inequitable to ignore it. The result? Only the most extreme and rare forms of misconduct are typically acknowledged.
A High Bar…And a Costly One
For conduct to impact a financial award in divorce proceedings, it must be what courts have described as “gross and obvious” or “reprehensible and outrageous.” This isn’t just a high threshold, it’s one that leaves little space for nuance, or for recognising emotional or psychological harm that doesn’t directly affect the bottom line.
Cases like Miller v Miller; McFarlane v McFarlane (2006) and W v W (2010) have cemented this strict approach. Even serious wrongdoing, such as false allegations or long-term manipulation, often isn’t enough unless it clearly alters the financial picture. In K v K (2007), financial misconduct did lead to a different outcome, but only because there was solid, provable evidence of financial harm.
What these cases don’t always make clear is the practical cost of pursuing a conduct argument. Proving such claims often requires extensive evidence, expert reports, and prolonged litigation, all of which can be expensive and emotionally draining. For many, the cost of trying to prove conduct outweighs the potential benefit, leaving harmful behaviour unaddressed and unacknowledged in the final settlement.
What the Courts Do Consider
Only specific categories of conduct are likely to move the needle in financial remedy proceedings:
- Fraud and Non-Disclosure – Hiding or misrepresenting assets undermines the process and can lead to penalties.
- Abuse or Violence – Only relevant where it impacts finances or care of children.
- Asset Dissipation – Wasteful or intentional squandering of resources with the aim of defeating a claim.
- Severe Unreasonable Behaviour – Only when the behaviour is extreme and its financial effect clear.
What’s notably missing here is a consistent consideration of the emotional toll of misconduct—something that modern psychology and social understanding recognise as highly relevant.
A Law Behind the Times?
The Matrimonial Causes Act 1973 was designed in a different world, one where social roles were rigid and divorce far less common. Its enduring influence means that while the law claims to value fairness, it often fails to reckon with the full reality of what fairness looks like in a modern separation.
Today’s society is more attuned to the complexity of personal relationships, to the impact of coercive control, emotional abuse, and long-term dishonesty. Yet the law remains narrowly focused on financial arithmetic rather than the full human context.
As legal professionals, we work within the framework we have, but we must be acutely aware of its limitations. There is growing momentum for reform that more faithfully reflects the values of today’s families, where fairness means more than just numbers on a spreadsheet. Until then, the influence of conduct in financial remedy proceedings will remain not just limited, but arguably, outdated.
The Law Commission
The Law Commission, a group that reviews laws and suggests improvements, recently looked at this issue in a December 2024 report. Here’s what they found and what could change in the future:
The Law Commission’s 2024 report highlights that:
- The current rules on “conduct” are vague and outdated.
- Many believe serious wrongdoing (like financial deception or domestic abuse) should be reflected in settlements.
- But there’s a real challenge: how do you fairly measure the emotional, psychological, or indirect financial impact of such behaviour?
The Commission suggests clearer rules and more guidance but acknowledges the complexity of turning deeply personal experiences into something the law can weigh objectively, not forgetting, the potential costs associated with taking this approach.
The real question isn’t just whether the law should change – It’s whether it ever truly can.
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