Is the misconduct bar set too high?

Practitioners will be very familiar with the section 25 criteria in the Matrimonial Causes Act 1973 and with section 25(2)(g). This states that when exercising its powers under sections 23, 24, 24A, 24B and 24E of the act, the court shall 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’. 

How serious does the conduct have to be under section 25(2)(g) for the court to take it into account? How high is the bar set, and is it set too high?

Definition of conduct

The court originally adopted the definition of ‘obvious and gross’ conduct identified by Ormrod J and endorsed in Wachtel v Wachtel [1973] EWCA Civ 10. The statutory definition in the form of section 25(2)(g) as we know it today was inserted into the MCA 1973 by the Matrimonial and Family Proceedings Act 1984. 

In OG v AG [2020] EWFC52, Mostyn J identifies four types of conduct that may be relevant:

• Gross and obvious personal misconduct meted out by one party against the other; 
• Economic misconduct or the frittering away of assets that leads to ‘add back’ arguments – see M v M [1995] 2 FCR;
• Litigation conduct which, if proved, should result in penalised costs; and
• The failure to give full and frank financial disclosure leading to the drawing of inferences as to the existence of assets – see NG v SG [2012] 1 FLR 1211 and Moher v Moher [2019] EWCA Civ 1482 – which will affect computation. 

How serious does the conduct have to be?

The reported occasions on which the court has had regard to conduct since 1973 comprise attempted murder resulting in imprisonment, a knife attack on a party robbing them of their capacity to work,  GBH and attempted rape, and grave sexual misconduct within the family.

In Miller v Miller [2006] UKHL24 [2006] 2 AC 618, their Lordships rejected an argument by Mrs Miller that the termination of the marriage as a result of Mr Miller’s relationship with another woman and his arguing that the marriage was short as a result amounted to conduct that should sound in the division of the assets. 

In Finch v Baker [2021] EWCA Civ 72, after the part of the wife’s appeal seeking to assert that a negative contribution should amount to conduct had already been refused, the Court of Appeal confirmed the approach in Charman v Charman (No 4) [2007] 1 FLR 1246 – that regarding either a special contribution or the oxymoronic concept of a negative or nil contribution as conduct which may be ‘inequitable to disregard’ is confusing and should be avoided.  

How high is the bar now?

In Tsvetkov v Khayrova [2023] EWFC 130, Peel J identifies clearly that a party asserting conduct must prove: 

• The facts relied upon;
• If established, that those facts meet the conduct threshold, which has consistently been set at a high or exceptional level; 
• That there is an identifiable (even if it is not always measurable) negative financial impact which has been generated by the alleged wrongdoing, such that a causative link between the act or omission and the financial loss is required. Sometimes the loss can be precisely quantified, sometimes it may require a broader evaluation, but it is unlikely that the quantification should range beyond the financial consequences so caused.

There is very clear guidance in the judgment for practitioners on the completion of paragraph 4.4 of Form E and on the case management of allegations of conduct.  

In N v J [2024] EWFC 184, Peel J gave further guidance and concluded as follows:

• The high bar to conduct claims established in the jurisprudence is undisturbed by the  focus on domestic abuse in society of the family justice system; 
• Although the statute does not specifically refer to a financial consequence, and it is wise not to rule out completely the theoretical possibility of conduct being taken into account absent such a financial impact, the relevant authorities suggest that any such case will be vanishingly rare; 
• The alleged conduct must be material to the outcome. In the vast majority of cases, a fair outcome is ascertained by reference to the other section 25 criteria without requiring the court to examine conduct; 
• To inquire into conduct must be proportionate to the case as a whole.

In LP v MP [2025] EWFC 473, Cusworth J endorses the threshold set by Peel J as ‘at a very high level’. He also goes on to acknowledge in his judgment that there is a real risk of unfairness to victims where there is evidence of violent or coercive controlling behaviour, if the lack of readily quantifiable financial loss prevents the court from even considering the fairness of taking their assailant’s behaviour into account. In the right case, it should lead to a different award, but not inevitably so.

In Loh v Loh-Gronager [2025] EWFC 483, Cusworth J concluded that, in a case where the court is concerned specifically with the implementation of a pre-nuptial agreement, ‘inequitable’ personal conduct can mean conduct which is no more or less than ‘unfair’ or ‘unjust’ to disregard.  

Each of these judgments postdates the Domestic Abuse Act 2021 and provides clear guidance on how high the bar is. 

Economic abuse 

There is no doubt that practitioners are grateful for and respectful of the clear guidance on the current statutory definition of conduct provided by these recent cases.

Resolution published a report in October 2024 addressing the relationship between domestic abuse, as defined in section 1(3) of the Domestic Abuse Act 2021, and the division of finances on separation and divorce. The report contains the results of a survey shared on social media and made available to Resolution and Family Law Bar Association members. Interestingly, 80.2% of the respondents to the survey indicated that they felt that the long-term impact of economic abuse is not sufficiently taken into account in financial proceedings, rising to 87% in Schedule 1 proceedings, and 90% in Trust of Land and Appointment of Trustees Act 1996 proceedings.  

The report highlights that two different schools of thought emerged at the Resolution Economic Abuse Summit in 2024. One such school considers section 25(2)(g) as currently drafted to provide sufficient flexibility to enable the court to attach the appropriate weight to conduct. The other considers the possibility of introducing a new section 25(2)(i), requiring the court to have regard to ‘any harm suffered by a party as a result of domestic abuse’. 

Included within the recommendations of the report is the possibility of a new practice direction. This would provide clarification for practitioners and litigants as to what forms of domestic abuse would be regarded as crossing the statutory threshold for conduct to be taken into account in financial proceedings. 

Neil Graham is a partner at G&G Law, London