What constitutes sufficiently ‘bad behaviour’? As family lawyers, we are used to explaining section 25 of the Matrimonial Causes Act 1973 at the very first meeting. It is the familiar checklist the court must consider when deciding how finances should be divided on divorce.
One of those factors is conduct: the court must have regard to the conduct of each party if that conduct is such that it would, in the opinion of the court, be inequitable to disregard it.
In a new briefing, senior associate Jasmin Talai questions whether the threshold for conduct in financial remedy proceedings has been set too high and whether reform is now needed. She argues that the current approach risks overlooking the financial impact of domestic abuse.
Theory versus practice
On one reading, that is a broad and flexible test. It does not suggest that misconduct must be sensational, unprecedented or extreme beyond all ordinary measure. It simply says that it must be inequitable to ignore.
In practice, however, case law has developed very differently. The threshold for personal misconduct has become exceptionally high with one of the most well-known successful cases concluding that the husband’s attempted murder of his wife was sufficient for the court to find that it would be inequitable to disregard (H v H (financial relief: attempted murder as conduct) [2005] EWHC 2911 (Fam)).
Practitioners have long been guided by the language of conduct needing to be “obvious and gross”, derived from Wachtel v Wachtel (No2) [1973] Fam 72 and that the behaviour must provoke a “gasp”, not merely a “gulp”, FS v JS [2006] EWHC 2793 (Fam) (10 November 2006). The modern authorities have reinforced that narrow approach. In Tsvetkov v Khayrova [2023] EWFC 130, Mr Justice Peel restated that conduct must be proved, must meet the threshold, which has consistently been set at a high or exceptional level, and must have an identifiable (even if not always easily measurable) negative financial impact.
Judicial caution is understandable. Financial remedy proceedings are not designed to punish marital wrongdoing or turn into satellite litigation about who behaved worst during the relationship. The courts are rightly wary of allowing every allegation of bad behaviour to expand litigation, increase costs and inflame already difficult cases. However, there is a growing sense that the pendulum may have swung too far.
Domestic abuse and financial impact
That matters particularly in cases involving domestic abuse. Abuse within a relationship is not confined to obvious physical violence. It can include coercive and controlling behaviour, financial deprivation, isolation from information or resources, manipulation, fear and dependency. Those things can have profound effects on a victim-survivor’s financial position, even where the consequences are not immediately reducible to a neat figure on a spreadsheet.
That concern is reflected in the Government’s new consultation, A fairer end to relationships. The consultation expressly states that protection against domestic abuse is a key theme and seeks views on how domestic abuse should be considered by the courts in both financial remedy and cohabitation cases.
The consultation also appears to recognise something many practitioners have felt for some time: the “gasp factor” is not a satisfactory way of describing the current threshold. That phrase risks trivialising domestic abuse and, worse, risks normalising it. A judge’s reaction to a set of facts should not become the measure of whether justice requires that those facts be taken into account.
Recent cases: a shift in approach?
Recent cases have added another interesting layer to the debate. Two of the most prominent successful conduct cases in the last year were LP v MP [2025] EWFC 473 and MRU v ECR (Financial Remedies) [2025] EWFC 218 (B).
In LP v MP, The Honourable Mr Justice Cusworth reduced the wife’s sharing entitlement by 40% due to her lack of contribution and what he described as her “deplorable conduct”. The allegations found proved included coercive and controlling behaviour, verbal and emotional abuse, serious physical abuse, false allegations, and deception over money, status and criminal offending. Importantly, the judgment is notable for recognising that coercive and controlling behaviour may have financial consequences that are real even if they are not readily measurable:
“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…”
Similarly, in MRU v ECR, the court treated the wife’s admitted conduct and incarceration as conduct which it would be inequitable to disregard, with consequences for the parties’ respective housing needs and the overall outcome. The decision arose out of long-term abuse, including threats and actual violence, domestic abuse and controlling and coercive behaviour.
A question of consistency
What I find particularly striking is this: in both of those recent successful cases, the abusive party was the wife. That may, of course, be no more than coincidence. It does not automatically prove a double standard. However, it is a question worth asking whether conduct is still most likely to be treated as sufficiently shocking when it departs from expected gendered narratives. If the facts of LP v MP or MRU v ECR had involved husbands as the perpetrators, would the outcomes necessarily have been the same? One would hope so. But I suspect many practitioners will at least pause before answering with complete confidence.
A case for reform
This is precisely why reform matters. The answer is not to turn financial remedy proceedings into moral tribunals. Nor should adultery, relationship blame or the ordinary sadness of marital breakdown be reintroduced through the back door. But there is a great deal of space between that and the current position, where personal conduct arguments are so tightly constrained that many victim-survivors are told, from the outset, that the court is unlikely to engage with what they have experienced.
The current consultation is a vital important opportunity to address that imbalance. It asks the right questions: whether domestic abuse should more readily be taken into account, how it should affect outcomes, and whether the language currently used (the “gasp” factor) to describe the threshold should be replaced.
The law must reflect modern relationships and the real impact of abuse and it is time for change.
About Jasmin
Jasmin Talai is a senior associate in the family and children law team. She advises on a wide range of family law matters arising from the breakdown of relationships or where there are disputes relating to children. She has a particular interest in disputes relating to children including cases of internal and international relocation.
Get in touch
If you would like to speak with a member of the team you can contact our family and children solicitors by telephone on +44 (0)20 3826 7520 or complete our enquiry form.
