The significance and role of marital misconduct in proceedings for financial relief on divorce has had a long and varied history in family law. This article explores that history and the evolving significance of conduct within the litigation process and poses the question whether the current approach to conduct under s 25(2)(g) Matrimonial Causes Act 1973 (1973 Act) is in need of reassessment.

Historical context

Pre-1857

From medieval times1 and up until the late 17th century, the only remedy generally available to married couples wishing to separate was a divorce a mensa et thoro from the ecclesiastical court. A mensa et thoro divorce was a form of legal separation (or judicial separation). The remedy of a dissolution of a marriage only became available from about the late 17th century to the very select few who could obtain a private Act of Parliament dissolving their marriage.2

When determining an application for legal separation, the ecclesiastical court also had jurisdiction to make an order for financial provision for the wife.3 However, the court’s willingness to exercise its discretion to award maintenance depended on its determination of which party was responsible for the breakdown of the marriage. Therefore, if a husband was able to persuade the ecclesiastical court that it was the wife who was responsible for the breakdown of the marriage, he would not be ordered to pay maintenance, despite the marriage continuing. In contrast, if the husband was responsible for the breakdown, he would likely be ordered to pay maintenance.

Consequently, from the earliest times the parties’ conduct during the marriage was central to both the grant of divorce and to the financial relief a court would be willing to grant. This, over time, led to the development of the concept of marital offence or fault as the central concept governing the court’s approach to the grant of financial relief to a wife4 lasting up until modern times.

Post-1857

For reasons beyond the scope of this article, the Reformation did not lead to substantive changes to divorce law in England and Wales, as it had done in other European states. It was not until the Matrimonial Causes Act of 1857 (1857 Act) that major reform was introduced. The 1857 Act introduced a designated divorce court with exclusive jurisdiction over matrimonial matters and for the first time enabled both parties to a marriage to present a divorce petition for the dissolution of the marriage (albeit the evidential burden on the parties seeking a divorce was not equal5). While the 1857 Act was a major advance in widening the availability of divorce, it did not reform the court’s approach to conduct and marital fault in the grant of financial relief. Rather, it codified the existing approach by providing that when the divorce court was exercising its jurisdiction to award financial relief, if the court thought fit, it could order the husband to pay maintenance to the wife ‘having regard to her Fortune (if any), to the Ability of the Husband, and to the Conduct of the Parties, it shall deem reasonable’.6

Given the parameters set by the governing statute, the case-law that developed following the 1857 Act continued to reflect the central importance of conduct and the importance of marital fault to the grant of financial relief.

The lack of reform, both pre- and post-1857, to the role of conduct in the court’s exercise of its discretion to grant financial relief led to the development and entrenchment of the concepts of the ‘guilty’ wife and the ‘innocent’ wife.7 The practical consequence of these concepts was that the court’s discretion to grant financial relief would only be exercised in favour of an ‘innocent’ wife and would not be exercised in favour of a ‘guilty’ wife, save for in exceptional circumstances. It further meant that there was considerable, if not complete, overlap between the facts needed to prove a divorce and the facts relevant to the court exercising its discretion to grant financial relief.

The Divorce Reform Act 1969

The court’s ability to decline to order financial provision for a ‘guilty’ wife persisted until as recently as 1973 and was only finally brought to an end following the reforms implemented by the Divorce Reform Act 1969 (1969 Act). The 1969 Act transformed divorce law by making the irretrievable breakdown of a marriage the sole ground for divorce and, thereby, removing the need for matrimonial offence to be established. This meant that for the first-time the parties’ conduct was not central to the granting of a divorce.

The reform of the law of divorce inevitably meant that some reform was also required to the statute governing financial relief on divorce.8 Those changes to the statutory provisions were contained in the Matrimonial Proceedings and Property Act 1970 (1970 Act).

However, the 1970 Act left the place of conduct largely unchanged from its previous iterations in the preceding statutes as a matter to which the court was required to have regard to. As such, although the 1969 Act removed matrimonial offence as the basis for divorce, the 1970 Act maintained the court’s obligation to consider conduct when exercising its discretion to grant financial relief. While the 1970 Act did not change the statutory language on conduct, it did introduce several significant reforms, including the first iteration of the s 25 factors.

Wachtel v Wachtel

It was against the backdrop of these significant legislative reforms that the role of conduct was considered at first instance by Ormrod J (as he then was) in the case of Wachtel v Wachtel [1973] Fam 73. Ormrod J held that the 1970 Act and 1969 Act taken together represented a ‘new code of family law’ and stated that it was no longer appropriate to talk about an ‘innocent’ or a ‘guilty’ wife.9 He rejected what he described as prevailing view: that conduct under the 1970 Act meant conduct which had contributed to the breakdown of the marriage and, consequently, financial provision for a wife should be discounted in proportion to her share of blame for the breakdown of the marriage.10 He concluded that the court could only approach the issue of conduct in a broad way and conduct ‘usually prove[d] to be a marginal issue which exert[ed] little effect on the ultimate result unless it is both obvious and gross’.11

On appeal, Ormrod J’s decision, as it related to the role of conduct under the 1970 Act, was approved by the Court of Appeal, with Lord Denning MR stating:

‘When the judge comes to decide these questions, what place has conduct in it? Parliament still says that the court has to have “regard to their conduct”: see section 5(1) of the Act of 1970. Does this mean that the judge in chambers is to hear their mutual recriminations and to go into their petty squabbles for days on end, as he used to do in the old days? Does it mean, after a marriage has been dissolved, there is to be a post mortem to find out what killed it? We do not think so. In most cases both parties are to blame – or, as we would prefer to say – both parties have contributed to the breakdown …

… There will no doubt be a residue of cases where the conduct of one of the parties is in the judge’s words ante, p. 80C–D, “both obvious and gross” so much so that to order one party to support another whose conduct falls into this category is repugnant to anyone’s sense of justice. In such a case the court remains free to decline to afford financial support or to reduce the support which it would otherwise have ordered. But short of cases falling into this category, the court should not reduce its order for financial provision merely because of what was formerly regarded as guilt or blame. To do so would be to impose a fine for supposed misbehaviour in the course of an unhappy married life’12

The reforms implemented by the 1969 Act and the 1970 Act, as interpreted by the court in Wachtel, brought about meaningful change to divorce litigation, which up until the early 1970s was manifestly unsatisfactory, discriminatory and long overdue for reform.

The Matrimonial Causes Act 1973

The final step in the statutory evolution of conduct occurred when the 1973 Act, s 25 (which consolidated the 1969 Act and 1970 Act into a single statutory provision) was amended in 1984. As with earlier changes to the law on divorce, the work of the Law Commission underpinned the amendments to the 1973 Act.

The Law Commission report13 identified ‘Two intractable problems’ which required legislative reform. One of those intractable problems was the extent to which conduct should be taken into account by the court when exercising it discretion.14

The Law Commission recognised the forensic difficulty in a court apportioning blame for the breakdown of a marriage, as identified by Ormrod J in Wachtel, stating:

‘the courts as now constituted cannot reasonably be expected to apportion responsibility for breakdown in any save exceptional cases … It seems to us (and our view was endorsed by the majority of professional and academic commentators on the Discussion Paper) that it would be quite wrong to require the court to hear the parties’ mutual recrimination at enormous expense to the individuals involved (or, if they have legal aid, the taxpayer) in those cases where such findings as the court could make would have little effect on the order.’15

To bring the governing statutory provision on financial relief in line with the case-law that had been developed by the courts since Wachtel, it was recommended that s 25 should be amended to provide that conduct would be a matter which the court could have regard to if it was ‘inequitable to disregard it’, rather than a matter the court was required to have regard to when exercising its discretion. The Law Commission report expressed the need for conduct to have a continuing role in proceedings for financial relief as follows:

‘The second issue relates to the question of identifying those exceptional cases in which the court can not only identify responsibility for the breakdown of the marriage, but should also allow that assessment to influence the financial orders that are to be made.’16

It is evident from the language used in the Law Commission report that the type of conduct being referred to was the conduct that had previously taken centre stage in proceedings for financial relief in the pre-Wachtel era, namely conduct relevant to establishing who was responsible for the breakdown of the marriage. The amendment to the 1973 Act was, therefore, aimed squarely at ensuring that the courts did not go back to a situation in which they would be routinely concerned with hearing the parties ‘mutual recriminations’, whilst simultaneously ensuring conduct could still have a role in the exercise of the court’s discretion in certain circumstances.

This analysis is supported by the then Lord Chancellor (Lord Hailsham) who commented on the proposed amendments to s 25 during the passage of the Bill by saying:17

‘Thirdly, the existing section is right because, although it provides that conduct can have some influence on financial settlement and that it would be repugnant to conscience if it did not do so, the section, as interpreted by case law, makes it quite clear that nothing—I repeat “nothing”—would justify a return by the courts to the degrading and squalid experience which we can all remember as “the defended cruelty case”.

The post-Wachtel approach to conduct

The case-law since Wachtel has emphasised the exceptionality of conduct as a factor capable of affecting a court’s award. In Radmacher v Granatino [2010] UKSC 42, Baroness Hale described as ‘very rare’18 the cases in which the courts will take conduct into account. In OG v AG [2020] EWFC 52, Mostyn J described any personal misconduct as needing to be ‘gross and obvious’ and which needed to meet ‘the high standard of “inequitable to disregard” before it may be reflected in an award.19 However, neither the passage of time nor the senior courts’ emphasis on the exceptionality of conduct has diminished the importance of conduct to the parties themselves, who often struggle to understand why the court will not permit the misconduct of the other to be litigated when the principle of ‘fairness’ underpins the grant of financial relief.

The inevitable emotional aspect of the divorce process means there continues to be a tension between one or both of the parties wanting to litigate the issue of the other’s misconduct and the court’s reluctance to adjudicate on the issue. In Miller v Miller [2006] UKHL 24 Lord Nicholls recognised that the relevance of the parties’ conduct still remained ‘a vexed issue’.20

In addition to emphasising the limited circumstances in which conduct will be reflected in an award, the courts have also recently sought to limit the ability of the parties to litigate the issue by imposing certain procedural hurdles. In Tsvetkov v Khayrova [2023] EWFC 130 Peel J set out the procedure to be followed where conduct is in issue.21 The expectation that these procedural hurdles must be overcome before conduct can be litigated as an issue was recently confirmed by Peel J in N v J [2024] EWFC 184, as part of his consideration of the issue of domestic abuse in financial remedy proceedings and how it interacts with the concept of conduct.22

The procedural hurdles set out by Peel J include the need to ‘plead’ conduct and the need for conduct to be specifically case-managed, having regard to the overriding objective under the Family Procedure Rules 2010 (SI 2010/2955) (FPR). The active case management suggested by Peel J in Tsvetkov includes the court exercising its power to prevent a party from pursuing conduct if the ‘exceptionality threshold’ is not met. It is noteworthy that these restrictions on a party’s ability to rely on one of the s 25 factors do not apply to the other s 25 factors. The s 25 factors are, of course, not listed in any order of importance and the weight to be given to each factor will depend on the facts and circumstances of the case.23

The language of s 25(2)(g) itself does not impose any additional hurdles on it being prayed in aid by a party. It simply sets the bar at which conduct may be taken into account by the court as being that conduct which it would be ‘inequitable to disregard’. It is the interpretation of this phrase in case-law that suggests that the threshold is a high one. For example, as part of his consideration of domestic abuse and conduct in N v J, Peel J reaffirms the need for conduct to be exceptional, relying on the ‘both obvious and gross’ formulation adopted by Ormrod J (as he then was) in Wachtel.

The decision in Wachtel therefore continues to have a powerful influence on how the court approaches the issue of conduct today. This is despite the fact that, as set out above, the term ‘both obvious and gross’ was used in 1973 by Ormrod J as part of an attempt to discourage litigants from arguing about who was to blame for the breakdown of the marriage in circumstances where there had been significant change in the statutory provisions. The mischief Wachtel sought to address by restricting the consideration of conduct was the continued reliance on the pre-1969 Act approach to conduct, when the new law meant conduct no longer needed to take centre stage in the litigation. Unsurprisingly, the court at both first instance and on appeal in Wachtel held that the old practice of conduct being argued in every case was not compatible with the new code of family law. However, what is arguably surprising is the continued prominence of this approach 50 years later when the conduct issue usually sought to be relied on by litigants is not about who is to blame for the breakdown of the marriage, but rather concerns the effect of one party’s behaviour on the other.

Further, it is questionable whether the courts should in any event interpret Ormrod J’s words as restrictively as they have done. The speech given by the then Lord Chancellor, Lord Hailsham, during the passage of the Bill gives a useful insight into the intended scope of the new s 25(2)(g) relative to the interpretation of conduct in case-law. Lord Hailsham said:

‘it is made plain beyond doubt in Section 25(2)(g) of the Act, as it would be inserted by the present Bill, which provides that the court is only to take conduct into account if the conduct is such that the court considers that it would be inequitable to disregard it. This is in effect slightly more restrictive than the wording of the old Act, but slightly less restrictive than the judicial rhetoric “gross and obvious” of Wachtel might lead one to suppose if taken out of context.’ (emphasis added).

It is, therefore, apparent that the intention of the new s 25(2)(g) was to slightly loosen the restrictions imposed by the ‘gross and obvious’ test and not to maintain the test. However, despite this, the courts have continued to adopt the more restrictive approach that the new s 25(2)(g) was intended to relax.

Domestic abuse and conduct

There can be little doubt that the current landscape of divorce litigation, and family law litigation in general, is materially different to the prevailing landscape of the early 1970s. In particular, there is now a better and more nuanced understanding of the various types of behaviour that affect families emotionally and economically, and the court’s general approach to these issues in family proceedings has evolved.

However, it is far from clear that the current approach of the court in financial remedy proceedings has kept pace with the wider contemporary social and legal landscape. In particular, one of the most important legal and social developments since the 1970s is the recognition of the importance and prevalence of domestic abuse, and the economic element of such abuse. As such, arguably a key question for current times is how the Financial Remedies Court approaches and reflects domestic abuse when making its substantive decisions. In private law children proceedings, there is now FPR PD 12J, which sets out a comprehensive approach to be adopted by the courts when domestic abuse is in issue. In addition, the Domestic Abuse Act 2021 (2021 Act) sets out a clear definition and approach towards economic abuse, which is an issue that is particularly relevant in financial remedy proceedings.

The 2021 Act defines ‘economic abuse’ at s 1(4) as:

‘any behaviour that has a substantial adverse effect on B’s ability to—

(a) acquire, use or maintain money or other property, or

(b) obtain goods or services.’

Examples of economic abuse under the 2021 Act include:24

• controlling the family income;
• refusing to contribute to household income or costs;
• refusing to make agreed or required payments, for example mortgage repayments or child maintenance payments;
• deliberately frustrating the sale of shared assets, or the closure of joint accounts or mortgages; and
• deliberately forcing a victim to go to the family courts so they incur additional legal fees.

These examples of economic abuse under the 2021 Act are all examples of misconduct commonly encountered in financial remedy proceedings, although not commonly litigated. The difference in approach between how misconduct is currently approached and interpreted in financial remedy proceedings and under the 2021 Act means a party can be the victim of economic abuse for the purposes of the 2021 Act, and possibly be the victim of an offence under the Serious Crime Act 2015,25 but based on that behaviour, cannot run conduct in the financial remedy proceedings because they are unable to demonstrate that the behaviour is ‘exceptional’.26 Such a situation is arguably unsatisfactory and inconsistent with the court’s overriding duty to achieve fairness between the parties.

The recent comments by Peel J in N v J do not suggest, at least for now, that the Financial Remedies Court intends to modify its approach to domestic abuse to reflect the wider changed position or sees there is any need to do so. For example, in N v J Peel J held that the high bar in bringing conduct claims established in case-law ‘is undisturbed by the recent focus on domestic abuse in society and the family justice system’27 and further held that the increasing awareness and recognition of domestic abuse and its harmful effects ‘does not lower the conduct hurdle to be surmounted in financial remedy proceedings’.28 While it is positive that Peel J recognised the increased awareness of domestic abuse, such recognition is arguably meaningless if the court is not going to modify its approach to reflect this increasing awareness and recognition in its decision-making process.

Also, as part of his wider consideration of the interplay between domestic abuse and conduct in financial remedy proceedings, Peel J considered the status in financial remedy proceedings of both the 2021 Act and PD 12J. Peel J concluded that ‘Neither [provision] amends or supplements the statutory definition of conduct in financial remedy proceedings as interpreted by case law’.29 But he also said ‘Nevertheless, the provisions to which I have referred to are plainly contextually important and relevant to all family proceedings, including financial remedies’.29

These comments on the status of PD 12J and the 2021 Act bring into sharp focus the contradiction of the current approach to domestic abuse in financial remedy proceedings. Peel J appears to say that while PD 12J and the 2021 Act are relevant and important in financial remedy proceedings, they do not change the court’s approach to conduct. However, the very purpose of PD 12J and the 2021 Act is to change the court’s approach to domestic abuse. Therefore, it is not clear how both provisions can be relevant and important in financial remedy proceedings, yet at the same time leave unchanged how the court approaches the issue of domestic abuse when considering conduct.

Further, the difficulty with this approach is that, as part of the family justice system, one would expect the Financial Remedies Court to both fully accept and embrace the wider procedural and substantive changes to the Family Court’s approach to the issue of domestic abuse and, further, any substantive changes of approach to how domestic abuse is considered in financial remedy proceedings should be more than ‘contextually important and relevant’. It would be surprising if one part of the Family Court (i.e. private law children proceedings) adopted a different substantive approach to the issue of domestic abuse and its ability to affect its decision making from another part of the same court (i.e. financial remedy proceedings).

With regards to Peel J’s emphasis that neither the 2021 Act nor PD 12J ‘amends or supplements’ the statutory definition of conduct, there is, of course, no statutory definition of conduct. There are only examples in case-law of the types of behaviour that may be taken into account for the purposes of s 25(2)(g). As Coleridge J astutely recognised in H v H [2005] EWHC 2911 (Fam) all of the cases on conduct going back to 1973 ‘are so fact-specific that they are very little real guidance in the end’.31 Therefore, the extent to which N v J should in fact be followed in cases where domestic abuse as conduct is in issue is arguable.

Further, the Court of Appeal authority of Goddard-Watts v Goddard-Watts [2023] EWCA Civ 115 (which was considered in N v J but not followed by Peel J) suggests that a different approach to conduct is permissible. An approach in which there does not need to be a direct financial consequence from the misconduct and conduct can be ‘the glass’ through which the effects of the behaviour complained of are addressed. Given the breadth of language of s 25(2)(g), such an approach undoubtedly falls within the statutory language and gives s 25(2)(g) the flexibility it requires to reflect changing societal attitudes to behaviour. Something the approach advocated in N v J does not.

Conclusion

It has now been over 50 years since the 1973 Act came into force and over 40 years since s 25 factors were last amended. In a similar way to which the role of conduct in proceedings for divorce and financial relief needed reform by the late 1960s, the time is arguably now ripe for a reassessment of the role of conduct in proceedings for financial relief, with particular consideration of how the issue of domestic abuse is considered as part of conduct. As set out above, the current approach to conduct in financial remedy proceedings is not in keeping with the wider recognition of domestic abuse and the negative economic effects such abuse can have. Further, the current high bar and procedural hurdles an alleged victim of domestic abuse must overcome before they can run a conduct case may be discriminatory, on the basis that domestic abuse is an issue that is more likely to affect women.

Fortunately, there are two important reports on the issue of conduct and the need for reform which, at the time of writing, are due to be published shortly. First, Resolution is due to publish a report prepared by its working party on domestic abuse in financial remedy proceedings. The working party’s report will provide an invaluable insight into family lawyers’ views about and experience of the current system and will also make recommendations on how the law and/or procedure can be improved.

Secondly, the Law Commission is carrying out a review of the law on finances following divorce and the ending of civil partnerships. One of the areas the Law Commission is considering is ‘what consideration the courts should give to the behaviour of separating parties when making financial remedy orders’.32 The Law Commission aims to publish a scoping paper in November 2024. This paper could form the basis of a full review and future recommendations for reform of this area of law, which hopefully will include a comprehensive reassessment of the current approach to conduct in financial remedy proceedings and recommendation for reform.

We, therefore, have two important reports, which are to be published shortly, which will provide much needed analysis of the current approach and will, hopefully, make recommendations for meaningful change.