Although conduct is a relevant factor under the checklist within section 25(2) of the Matrimonial Causes Act 1973, it is rarely raised in financial remedy proceedings. For a conduct argument to succeed, it must be ‘inequitable to disregard it’, in accordance with section 25(2)(g) and ‘obvious and gross’ as per the House of Lords’ decision in Miller v Miller; McFarlane v McFarlane [2006] UKHL 245.
In accordance with the decision of Mostyn J in OG v AG (Financial Remedies: Conduct) [2020] EWFC 52, aside from ‘obvious and gross conduct’, there are three other forms of conduct which are more commonly and more successfully raised. These are: add-back arguments, litigation misconduct (which is addressed in costs), and drawing adverse inferences where a party has not given full and frank disclosure. Successful arguments in respect of obvious and gross conduct, however, remain far more uncommon.
Despite that, two recent decisions of Mr Justice Cusworth may suggest a change of emphasis in respect of conduct arguments, particularly in cases involving coercive and controlling behaviour. In LP v MP [2025] EWFC 473, it was the wife’s conduct which was relevant. Her claim, based upon sharing, was reduced by 40% due to what the judge described as her ‘deplorable conduct’.
The wife’s behaviour included falsely maintaining that she had become a High Court judge; she had sought substantial sums from the husband to fund academic studies and judicial trips. She even told the husband that she was friends with Baroness Hale, Lord Wilson, Sir James Munby and Tony Blair. She was sentenced for two offences of fraud and dishonesty in the criminal courts. Throughout the marriage, she subjected the husband to coercive and controlling behaviour, verbal and emotional abuse and serious physical abuse. Quantifiable deception included demanding £60,000 for a treatment at the Priory which she never undertook and, after sacking the nanny, demanding that an equivalent sum was paid to her, which amounted to £174,900 over 43 months.
Cusworth J considered the decision of Peel J in Tsvetkov v Khayrova [2023] EWFC 130, in which he stated that a party asserting conduct must prove:
(a) The facts relied upon;
(b) If established, that those facts meet the conduct threshold, ‘which has consistently been set at a high or exceptional level’; and
(c) That there is an identifiable, if not always easily measurable, negative financial impact upon the parties, which has been generated by the wrongdoing. A causative link between the act or omission and the financial loss is required. He doubted that the causative loss can or should range beyond the financial consequences caused by the conduct.
On the third point of measurable financial impact, in Goddard-Watts v Goddard-Watts [2023] EWCA Civ 115, Macur LJ stated that the husband’s conduct was ‘the glass’ through which to address the issue, rather than seeking to quantify the conduct in monetary terms. This view was considered by Peel J in N v J [2024] EWFC 184, who instead reemphasised his view of the need for a causative link.
In considering these decisions, Cusworth J held: ‘In my judgment, where a party has been found responsible for coercive controlling behaviour within a marriage, especially when that behaviour includes a significant element of violence, the negative financial impact may well not be easily measurable, and any loss will only usually be capable of a very broad evaluation at best.’
Cusworth J also noted that Peel J was right that the higher courts had set a very high threshold for applying section 25(2)(g). But he felt that there is a real risk of unfairness to victims of violent or coercive controlling behaviour, if the lack of readily quantifiable financial loss prevents the courts from taking that behaviour into account.
Cusworth J’s second decision of Wei-Lyn Loh v Ardal Loh-Gronager [2025] EWFC 483 considered conduct both in the context of a prenuptial agreement and during the marriage itself.
When considering the husband’s behaviour during the marriage and in respect of the prenuptial agreement, Cusworth J stated, ‘… there should be no real difference between the two tests, and they should in effect be considered together. I accept that one goes primarily to the fair interpretation of the agreement, the other to broader fairness, perhaps once the impact of the PNA has been considered’.
In the context of the prenuptial agreement, Cusworth J noted the use of the word ‘fair’ in Radmacher v Granatino [2010] UKSC 42 and the test within that judgment for the upholding of a nuptial agreement. By reference to section 25(2)(g), he stated ‘… a party’s conduct should be considered if it is such that “in the opinion of the court, it would be inequitable to disregard it”. In this context, inequitable can mean no more or less than “unfair” or perhaps “unjust” and fairness is of course also the key element of the test at paragraph 75 of Radmacher’.
Although these decisions taken together could suggest that the courts may be more minded to hear arguments on conduct, that is perhaps unlikely to be the case in practice. For those parties who believe they do have a conduct case, it must be remembered that conduct must be raised at the earliest opportunity, usually in Form E, and must be pleaded specifically and clearly, identifying the allegations of conduct and, ideally, the direct financial impact of each.
There are also potential cost implications for raising conduct and not succeeding with that claim. Although the court will start with the principle of there being no order as to costs, the court retains the discretion to make costs orders in accordance with rule 28.3 of the Family Procedure Rules 2010. In accordance with paragraph 28.3(7)(c), when deciding to make a costs order, the court can consider whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue.
Andrew Newbury is a partner at Hall Brown Family Law, Manchester
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