The introduction of “no-fault” divorce on 6th April 2022 removed the requirement to assign blame and the need to rely on bad behaviour as the justification of a relationship breakdown. However, behaviour is still relevant in some cases.
Matrimonial Causes Act 1973
Section 25 of the Matrimonial Causes Act 1973 sets out the factors that the court must take into consideration when determining financial remedy claims. Section 25 (2)(g) provides that:
“The court shall in particular have regard to the following matters –
…
(g) 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”
Og v AG (Financial Remedies: Conduct) [2020] EWFC 52
In this case, Mostyn J set out four distinct conduct scenarios:
- Gross and obvious personal conduct;
- “add-back” jurisprudence;
- Litigation misconduct;
- Evidential technique of drawing inferences as to the existence of assets from a party’s conduct in failing to give full and drank disclosure.
Gross and obvious personal conduct:
- This conduct will only be considered in rare circumstances and when there is a financial consequence (Miller v Miller [2006] UKHL 24).
- Example: In the case of LP v MP [2025] EWFC 473, the court found that the marriage had been one founded on deception and fraud, continuing for much of its duration. This was because the wife had maintained that she had become a High Court Judge and that the husband had given her significant sums to fund judicial trips and further studies. The wife’s share was reduced, and she was not entitled to a replication of the marital standard of living.
“Add-back” jurisprudence
- Mostyn J in Og v AG (Financial Remedies: Conduct) [2020] EWFC 52 commented that “This arises where one party has wantonly and recklessly dissipated assets which would otherwise have formed part of the divisible matrimonial property”.
- Example: DH v RH (No 3) (Final Hearing) [2024] EWFC 79: Mr Justice MacDonald accepted that wanton and reckless dissipation can include excessive spending on legal costs.
Litigation Misconduct
- The judgment in Og v AG (Financial Remedies: Conduct) [2020] EWFC 52concludes that “Where proved, this should be severely penalised in costs. However, it is very difficult to conceive of any circumstances where litigation misconduct should affect the substantive deposition.”.
- Example: DH v RH (No 3) (Final Hearing) [2024] EWFC 79, the court made a cost order against the wife due to litigation misconduct which included stealing confidential financial information from the husband. This costs order was in addition to the add back discussed above.
Drawing Inferences as to the Existence of Assets
- The judgment in Og v AG (Financial Remedies: Conduct) [2020] EWFC determined that the taking of account of such conduct is part of the process of computation, rather than distribution.
- Moher v Moher [2019] EWCA CIV 1482 confirmed that “while the court should strive to quantify the scale of undisclosed assets, it is not obliged to pluck a figure from the air where even a ballpark figure is in fact evidentially impossible to establish”.
- Example: HJ v QY [2026] EWFC 245: “the wholesale lack of disclosure by H, the failure to provide complete accounts… the repeated failure to comply with court orders for disclosure… and evidence of a lifestyle far in excess of that reported… all tend in favour of inferences being drawn as to H’s income and assets, ad in favour of W’s applications in this case in turn”.
When Should Conduct be Raised?
Conduct should be raised at the earliest opportunity and set out on the Form E. The allegations should be clear, and the financial impact should be set out.
Raising conduct clearly within the Form E allows the court to consider the issue at the First Appointment and to consider whether statements are required.
For assistance with Financial Remedy Proceedings, please contact clerks@anvilchambers.co.uk