Conduct: the current landscape
Of all the section 25 factors, conduct is likely to be the factor which gives practitioners the greatest pause for thought. Litigants often wish to use conduct as a way of expressing frustration at actions which took place during the marriage. This has become increasingly commonplace following the introduction of no-fault divorce, as the previous law gave people a way of airing their grievances outside of the financial remedy.
Despite the wishes of potential parties, if you were to do a straw poll of practitioners, they would advise that conduct has to have a financial consequence – as the case law in this area has been very clear, at the very least until recently. At a first instance level, the consideration of District Judge Dodsworth in A v R [2024] EWFC 218 (B) shines a helpful spotlight on the standard judicial consideration of conduct, as he canters through the law on conduct from Wachtel to Goddard Watts.
District Judge Dodsworth found the common thread was that financial consequence was invariably a necessary ingredient for conduct and that there must be a causative link between the conduct and the financial consequence. That is not to say that this view was universal. Indeed, HHJ Reardon took issue with this ‘finance focused’ approach in DP v EP [2023] EWFC 6, in part as she believed that such a refined view of section 25(2)(g) would render it nugatory.
The net effect
District Judge Dodsworth’s judgment was reported in the summer of 2024. By the Autumn, Resolution released its report Domestic Abuse in Financial Remedy Proceedings that revealed the widespread nature of domestic abuse in financial remedy proceedings, having gathered over 500 responses from a multidisciplinary working party. The results were eye-opening:
- Three-quarters of professionals reported domestic abuse in over 21% of their cases in the past three years
- Two-thirds identified economic abuse in more than 21% of cases during the same period.
Despite this, domestic abuse was far less frequently raised in financial remedy proceedings than the reporting would suggest, and the explanation given was that the legal test is that conduct should only be taken into account in such that it would be in the opinion of the court inequitable to disregard it. Professionals commented that long-term impact of domestic abuse was not sufficiently considered in financial remedy proceedings and 80% said that economic abuse was similarly overlooked.
Against that backdrop, it is perhaps unsurprising that the report concluded that the current approach of the courts to MCA 1973 s25(2)(g) [conduct] ‘leads to unfair outcomes for some victim-survivors of domestic abuse’.
Fairness v Functionality
The conclusion of Resolution’s report did not emerge in a vacuum. Within months, the Law Commission published its long- awaited scoping report on Financial Remedies on Divorce and Dissolution (December 2024) which follows the conclusion in the Resolution report but revealed two competing perspectives. On the one hand were those, predominantly practitioners and particularly solicitors, who argued for greater recognition of domestic abuse within the conduct framework, reflecting their day-to-day experience of how coercion and economic control translate into financial vulnerability and litigation disadvantage. On the other were members of the judiciary, who were largely resistant to any expansion, citing systemic concerns about pressure on limited resources, longer and more expensive hearings, increased conflict and a reduced likelihood of settlement.
The result is a stark but familiar tension. The drive to achieve individual fairness for litigants whose lives have been shaped by abuse sits alongside an institutional imperative to conserve finite resources and maintain the workability of the system as a whole. Increasingly, that balance may prove to be the central influence on how justice is experienced in financial remedy cases involving domestic abuse. The gap between the reality on the ground and the cases that parties feel able to run has generated considerable thought leadership, but little obvious shift from the bench – at least until the recent decisions of Cusworth J.
A shift from the bench?
LP v MP [2025] EWFC 473
Judgment was given on this unusual case in November 2025. The parties met in 2010 and married in August 2011. At the time they met, H’s spouse was dying of cancer and he was vulnerable. W convinced H that she was about to become a High Court judge and that their marriage would help her career. W convinced H that she ran in circles which included luminaries in the legal and political spheres. It was only in 2020 when W pleaded guilty to two unrelated offences of fraud and dishonesty that H began to question W. Her restitution was paid by H, as well as W’s legal fees.
The parties separated in 2023. In Children Act proceedings concerning the parties child (‘X’), Theis J made findings that W had subjected H to coercive and controlling behaviour, verbal and emotional abuse, as well as making malicious allegations that H has sexually abused X. Theis J also found that W has engaged in instances of serious physical violence against H, some of which X had witnessed.
Cusworth J’s view was that where a party has been found responsible for coercing and controlling behaviour within a marriage, whilst there is not necessarily an easily measurable negative financial impact, that does not mean that such an impact will not be present. Cusworth J’s view is that the words “inequitable to disregard” mean no more in ordinary parlance than “unfair to ignore”.
Cusworth J expressed concern that there was a real risk of unfairness to victims of violent or coercive controlling behaviour if the lack of readily quantifiable financial loss prevented the courts from even considering the fairness of taking the perpetrators behaviour into account, such behaviour potentially having far-reaching consequences.
In this case, despite the wife being the financially weaker party, her award was reduced by virtue of her behaviour. Cusworth J reduced wife’s sharing claim by 40% because of her lack of contribution and deplorable conduct and declined to order a needs-based top up finding wife’s needs should not be assessed with generosity given her behaviour.
Loh v Loh-Gronager [2025] EWFC 483
This is the third reported judgment on this matter, following Loh v Loh-Gronager [2024] EWFC 241 (regarding chattels) and Y v Z [2025] EWFC 221 (regarding conduct being run as an issue post-Tsvetkov).
In this case, the parties entered into a prenuptial agreement in 2019 before marrying 6 months later. W was an enormously wealthy businesswoman while H left employment as a banker in 2018 to support the family. Under the terms of the prenuptial agreement, husband was due a lump sum of £6.45m. During the currency of the relationship and into proceedings, H engaged in a multitude of poor behaviour. This included (i) taking significant sums from accounts funded by wife, amounting to £4.455m, (ii) seeking to undermine, harass and unsettle wife in the hope that she would be deterred from litigating, (iii) creating false evidence and (iv) seeking to denigrate and criticise wife throughout his evidence.
Cusworth J held that, of the £4.455m taken by H, £3.705m was taken without the wife’s permission. £750,000 was treated as a lump sum because it was put towards a use broadly consistent with the prenuptial agreement and accordingly, only 50% of it was deducted from H’s award. H’s award was therefore limited to £2.37m. Cusworth J again in this judgment makes some interesting comments that the word inequitable should be considered synonymous with unjust or unfair and that there should no real difference between the Radmacher test on giving effect to a prenuptial agreement and considering a party’s conduct. This will likely prove of interest to practitioners.
Procedure v Principle
The point to note is the tension between the pursuit of conduct claims and the jurisprudence of the courts. Cusworth J notes at paragraph 60 that the higher courts have sought for policy reasons to limit to only the most serious instances those occasions when first instance judges will alter the outcome of a financial remedy application by the application of section 25(2)(g). This is in line with Peel J’s judgments in N v J [2024] EWFC 184 and Tsvetkov v Khayrova [2023] EWFC 130, where conduct has to be pleaded and particularised early, with the financial impact identified at that stage.
This was not the case in Loh-Gronager. Indeed, in the previous conduct decision of Y v Z, Cusworth J made clear that a recital explaining conduct was not being run does not prevent the wife from running the case that she made very clear that she intended to run. W’s seeming failure to follow the Tsvetkov protocol did not prove fatal to her conduct claims generally. However, Cusworth J has still made clear in his decisions that financial impact (albeit perhaps unquantifiable in LP v MP) is still a factor to which he has had regard.
Unease beneath the surface?
The significance of these developments lies not only in their substance, but in the context from which they arise. For some time there has been a growing unease among practitioners and academics that the orthodox approach to conduct in financial remedy proceedings sits awkwardly with the far more developed understanding of domestic abuse now embedded elsewhere in family justice. The language of coercive control, economic abuse and long-term harm is familiar in Children Act work and in the criminal sphere; yet in money cases the emphasis has remained, at least traditionally, on whether a loss can be identified and evidenced in pounds and pence.
There is a further, and uncomfortable, dimension. Domestic abuse is a harm that disproportionately affects women. A framework which makes it exceptionally difficult to run conduct, or which treats non-financial consequences as marginal unless they can be monetised, risks indirect discrimination in its impact, even if entirely neutral in its intention. It is difficult to ignore that the case which may come to be cited as emblematic of this shift does not arise from the paradigm many might have expected given the traditional trend i.e. in in LP v MP the successful conduct arguments were advanced by a husband. That fact should not be controversial – women are not the only victims of coercive and abusive behaviour and the court’s protection must be widely available.
That being said, the circumstances of LP v MP may, inevitably, trigger questions about how developments of its kind are received by those for whom the push for reform has long felt most urgent, and whether cases involving male victims of abuse carry, rightly or wrongly, a particular capacity to galvanise attention. A question far beyond the realms of this article and one which the authors do not wish to embark upon muddy waters to reach a conclusion, but simply to predict that the optics form part of the wider conversation within which these decisions will be read. What is not in doubt is that any reform of the law of conduct will operate across the board, even if the policy impetus for change has largely grown out of concern about harms more commonly experienced by women.
Still the question remains, is this a sea-change? The forecast remains unclear. Yet, it’s certainly a wind in the sails for those of us who believe that conduct needs to be more widely defined than that which the Financial Remedy Court has for public policy reasons afforded litigants to date.
Katy Halliday, St John’s Buildings
Joe Ferguson, Myerson Solicitors
