The Problem with Conduct

Preamble

I have a view about the role of s 25(2)(g) conduct in financial remedies law and practice and I have been asked to share it.

Two requests, please. First, read to the end if you want to disagree with me. Secondly, consider viewing this issue through the lens of the rule of law.

Thank you to Samantha Hillas KC and Anita Mehta for being the best of the Bar, and for having the courage to start talking about the problem with conduct when the most favourable response was likely to be tumbleweed. And thank you to all the solicitors, too, who work tirelessly in this sphere, with Olivia Piercy leading the way.

Introduction

The 2024 Resolution Report[[1]] intended to begin, not conclude, the process of examining approaches to conduct under s 25(2)(g) Matrimonial Causes Act 1973 (s 25(2)(g)) when it comes to domestic abuse. This statutory provision directs the court, when exercising its powers in relation to finances on divorce, to 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’.

It may not be clear, to an outsider, why there should be debate about whether this wording would render serious abuse within a marriage relevant to the exercise before the court. The empirical evidence, and the resulting approaches in other areas of law and in other fields, confirm that domestic abuse is individually life-changing and costly for society as a whole.

In Prest v Petrodel Resources Ltd & Ors,[[2]] Lord Sumption JSC observed[[3]] that ‘Courts exercising family jurisdiction do not occupy a desert island in which general legal concepts are suspended or mean something different’. With an eye on recent cases, the s 25 jurisdiction – specifically s 25(2)(g) conduct – seems to be retreating to an even remoter island which the rest of family law, criminal law and even banking law has since departed. For example, domestic abuse, coercive control and associated behaviours can impact:

(1) child arrangements;[[4]]

(2) relocation of children;[[5]]

(3) judicial approval of nuptial agreements;[[6]]

(4) enforcement of joint borrowing by commercial lenders;[[7]] and

(5) murder charges.[[8]]

But financial family law, as a sector, seems unsure whether domestic abuse and coercive control fall within the statutory ambit of conduct which it would be inequitable to disregard. This piece aims to address the question: is the problem with us, the sector, or is it the law? Of course, not much of what follows is new but that is also part of the problem. This issue has existed since the legislation, as it is now drafted, was enacted and it simply will not go away.

The problem is not Wachtel

The problem may arise from 50 years of sound-biting from this authority without regard to its context. Namely, protecting women from financial punishment for their degree of responsibility for the breakdown of their marriages. Wachtel[[9]] is the seminal decision of the Court of Appeal on conduct (under the Matrimonial Proceedings and Property Act 1970) in which the threshold for taking conduct into account – ‘obvious and gross’ – was established. This threshold was approved by the House of Lords, in the s 25(2)(g) context, in Miller; McFarlane.[[10]]

Re-reading Wachtel in the context of the current crisis around s 25(2)(g) is an interesting exercise with the benefit of over half a century’s hindsight.[[11]] The (now eyebrow raising) reality, evident from the discussion in the judgment, is that, as of the early 1970s, it was principally wives who were liable to have their awards reduced on account of their ‘guilty’ conduct (which could include adultery, intolerableness to live with, even ‘socially unacceptable behaviour’). This seems to be because the resources at stake were typically deemed to belong to the husbands.[[12]] Ormrod J, at first instance,[[13]] summarised the judicial approach that had evolved to reduce wives’ awards by reference to their conduct and noted, ‘The prevailing view at present seems to be that conduct in this context means conduct which has contributed to the breakdown of the marriage, with the consequence that financial provision for the wife should be discounted in proportion to her share of responsibility for the breakdown’.

However, he went on to note – chiming with a core concern that continues now, all these decades later:

‘There is in fact, no statutory authority for this view of conduct at all. The Matrimonial Proceedings and Property Act 1970 refers simply to “conduct” whereas nothing would have been easier than to include an additional paragraph in section 5 (1) to the effect that the court should have regard to “the extent to which the wife by her conduct contributed to the breakdown”.’

The same point can obviously be made about the additions of provisos before regard is had to conduct, according to more recent authorities, such as an ‘identifiable negative financial impact’[[14]] and exceptionality (more on which below).

Lord Denning, in Wachtel,[[15]] addressed the crux of the issue:

‘It has been suggested that there should be a “discount” or “reduction” in what the wife is to receive because of her supposed misconduct, guilt or blame (whatever word is used). We cannot accept this argument. In the vast majority of cases it is repugnant to the principles underlying the new legislation, and in particular the Act of 1969. There will be many cases in which a wife (though once considered guilty or blameworthy) will have cared for the home and looked after the family for very many years. Is she to be deprived of the benefit otherwise to be accorded to her by section 5 (1) (f) because she may share responsibility for the breakdown with her husband? 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. Mr. Ewbank disputed this and claimed that it was but justice that a wife should suffer for her supposed misbehaviour. We do not agree. Criminal justice often requires the imposition of financial and indeed custodial penalties. But in the financial adjustments consequent upon the dissolution of a marriage which has irretrievably broken down, the imposition of financial penalties ought seldom to find a place.’

The critical distinction made in this passage is between blameworthiness in the context of the breakdown of any marriage (for example, adultery or unreasonableness) and conduct (whatever the timeframe) which is ‘both obvious and gross’ such that it would offend anyone’s sense of justice to make a full award.

Lord Nicholls repeated this point in Miller; McFarlane when he said:[[16]]

‘the difficulties confronting judges if they seek to unravel mutual recriminations about happenings within the marriage, and the undesirability of their attempting to do so, have been rehearsed many times. In Wachtel v Wachtel [1973] Fam 72, 90, Lord Denning MR led the way by confining relevant misconduct to those cases where the conduct was “obvious and gross”.’

When it came to the Miller appeal, Lord Nicholls noted that: ‘Both the judge and the Court of Appeal had regard to the husband’s conduct when, as the judge found, that conduct did not meet the statutory criterion. The husband’s conduct did not rank as conduct it would be inequitable to disregard’.

‘65. This approach, I have to say, is erroneous. Parliament has drawn the line. It is not for the courts to re-draw the line elsewhere under the guise of having regard to all the circumstances of the case. It is not as though the statutory boundary line gives rise to injustice. In most cases fairness does not require consideration of the parties’ conduct …’

As Baroness Hale put it:[[17]]

‘But once the assets are seen as a pool, and the couple as equal partners, then it is only equitable to take their conduct into account if one has been very much more to blame than the other: in the famous words of Ormrod J in Wachtel v Wachtel [1973] Fam 72, at p 80, the conduct had been “both obvious and gross”. This approach is not only just, it is also the only practicable one. It is simply not possible for any outsider to pick over the events of a marriage and decide who was the more to blame for what went wrong, save in the most obvious and gross cases.’

As Lord Nicholls implied, this should be obvious: if the conduct is not inequitable to disregard, it should not go into the s 25 weighing scales when determining an award. This is no more than the statute says. These key decisions – Wachtel and Miller – did not seek to categorise what is obvious and gross conduct and what is not. The essential statutory question has remained clear since 1973: would it be inequitable to disregard the conduct because it is obvious and gross? If so, it must be factored in. The more difficult question, left out from recent discussion it seems, is in which category to place domestic abuse for there are seemingly only two: is it the stuff of ordinary blameworthy behaviour and mutual recrimination or is it obvious and gross? Clearly, there is a spectrum and much nuance when it comes to conduct within a marriage/divorce. Every case turns on its facts. The current approaches, arising from some authorities, risk overlooking this reality, a reality for which the whole aegis of s 25 was intended to provide.

The problem is gloss (and forgetfulness)

It is now said that, according to very recent authorities, the alleged conduct should have an identifiable negative financial impact if it is to be allowed to pass to determination.[[18]] There must be a causative link between the conduct and its financial consequence. The immediate problem, therefore, is that it is possible to establish the existence of potentially qualifying conduct which would be inequitable to disregard (in the language of the statute) but which is ignored, from the earliest stage, because of a summary assessment of its consequences without any (tested) evidence on the issue.

I am particularly concerned here (and I am not alone) about sexual assault as conduct. For example, rape (or non-consensual sex to use its civil (non-criminal law) name) that is perpetrated after separation. How can we identify financial consequences to this type of conduct in its early aftermath? Why are we asking the victim to prove how bad the rape was for her economically? The range of responses to trauma is now considered to be: fight, flight, freeze or fawn. When the, let’s say, emergency worker wife, gets up and goes to work as normal after an attack, is that really evidence that her husband’s assault has no measurable impact? Or does it simply conform to established norms of behavioural response? But again, why is there a second burden of proof placed on the wife in this example? Let’s remember that there is effectively a burden of proof placed on carers, in financial remedies law, to prove a negative: that they don’t have a current or material earning capacity. Why not the same burden on perpetrators to prove their obvious and gross behaviour was consequence-free? Particularly when, empirically, there is a wealth of evidence about the long-term impact on victims and their children.

It is trite to say that the statute does not envisage any consequence of any type arising from the conduct in question. A financial ingredient was, expressly, not considered to be a cast-iron pre-requisite according to Macur LJ in the Court of Appeal in Goddard-Watts[[19]] (notwithstanding what was later said about this in N v J[[20]] at [37]). Twenty years ago, Coleridge J[[21]] formulated an approach whereby the proven conduct should have the effect of magnifying the innocent party’s position when assessing the other s 25 factors. This approach was approved in Goddard-Watts. Still, the requirement of an identifiable or measurable financial impact subsists, apparently because without this feature it would be unclear how to factor the conduct into the outcome (which seems an odd consideration to add to a question of statutory interpretation). This adage is particularly unfortunate when, for much of family law’s existence in this country, conduct was front, centre and financially factored in when, shall we say, the boot was on the other foot. We need only look to another common law jurisdiction, Australia, for a practical, tried-and-tested approach[[22]] for the current era, if we want a worked answer, that is.

The Court of Appeal’s decision in Clark v Clark[[23]] arguably deserves greater attention than it receives on this subject.[[24]] It is the highest authority directly on the point: what personal/abusive behaviour constitutes s 25(2)(g) conduct? The wife in Clark was ‘guilty’ of conduct which was deemed inequitable to disregard. The essence of her misbehaviour was that she did not want to have much to do with her husband – twice the judgment notes the marriage was not consummated – and she designed their living arrangements to avoid and isolate him. However, she did very much want to spend his money, mainly through making property investments and improvements which reduced rather than augmented the pot. By the end of the marriage, the husband had little money left (having largely transferred his wealth to the wife at her behest), he had little independence, was close to a prisoner in his own home and he had lost his zest and social life. He attempted suicide although was keen to return to the wife after he was treated in hospital. It is evident that the wife’s pattern of coercive and isolating behaviour and its impact on the husband, in the round, pushed it into the qualifying territory. There is also the unmentioned, perhaps unmentionable, feature of gender norms in play in conduct cases like Clark where the perpetrator of the conduct was a woman (more on which later).

As for how to approach the wife’s conduct in Clark, Thorpe LJ considered[[25]] (emphasis added):

‘Mr Scott has also submitted that in every case the judge should make a clear finding of what he would have awarded the wife assuming no discount for misconduct. Then the judge should quantify the misconduct in cash. Finally he should deduct the second total from the first to arrive at a patent result. I would reject that submission. The statute defines the judicial task and I am against further elaboration or overlay. There may be cases in which such an exercise would be appropriate in the judgment. There will certainly be cases where it will not. There may be cases in which a judge may adopt such an exercise whilst feeling his way towards a result. It is, of course, incumbent upon a judge to explain his conclusions, but it is fortunately not incumbent upon him to reveal all the thought processes through which he passed on his route to conclusion.’

In short, it is not always necessary, as part of the s 25 exercise, to single out and discretely calculate that part of the award that reflects proven conduct (any more than, say, relating the length of the marriage directly to the pounds and pence outcome). This is important: recent authorities risk placing the cart before the horse in this respect. The judicial concern to pinpoint how asserted conduct should weigh in the outcome – in terms of financial causation – is arguably irrelevant to the question of whether the conduct is qualifying. The two (perhaps three) issues appear to have become conflated. The better formulation might be: first, is it qualifying conduct under the statute (without gloss and by reference to Wachtel’s ‘obvious and gross’ guide)? Secondly, does the impact of the conduct merit calculation in monetary value for the purpose of determining the award? Thirdly, whether or not the subject of discrete monetary calculation, how or to what extent should the conduct be factored in (without requiring revelation of all judicial ‘thought processes’ and by use of the ‘magnifying’ approach)?

This proposed approach calls to mind Moylan LJ’s dicta on contributions in Hart (emphasis added):[[26]]

‘In arriving at this determination, the court does not have to apply any particular mathematical or other specific methodology. The court has a discretion as to how to arrive at a fair division and can simply apply a broad assessment of the division which would affect “overall fairness”. This accords with what Lord Nicholls said in Miller and, in my view, with the decision in Jones.

Finally, I would repeat that fairness has a broad horizon. I recognise, of course, the need for clear guidance and principles when the court is given a discretion as wide as that contained in section 25 of the 1973 Act. Such clarity not only assists judges when determining financial claims but also enables those seeking to resolve the consequences of their separation and divorce, as it has been described, “to bargain in the shadow of the law”: Matrimonial Property, Needs and Agreements 2014 (Law Com No 343) paragraph 3.6. However, this should not lead to the imposition of constraints which are not needed to achieve, and which deprive the court of the flexibility required to achieve, a fair outcome.’

One could go further and consider whether swapping out ‘conduct’ for ‘contributions’ within [90]–[97] of Hart[[27]] provides a sense-check for approaches to conduct issues. This (1) would recall Baroness Hale’s entreaty in Miller; McFarlane to approach conduct and contributions in much the same way;[[28]] and (2) may help fend off the charge that conduct is dealt with in a draconian and arbitrary fashion when compared with other s 25 factors (what of Art 6 ECHR?). Of course, the Family Court starts from something like a presumption that all spouses make contributions and almost no spouses are guilty of qualifying conduct. Conduct and contributions are indeed different species of factor and they may call for different approaches in individual cases. But the key practical considerations arising from appellate authority – for example, that fairness has a broad horizon – have arguably become lost in the current approach to conduct.

The apparent tension between the language of the statute and the Court of Appeal’s decisions on the one hand and a rising number of restrictive Family Court decisions on the other is, in my view, part of the real problem with conduct. For so long as the latter appears to contradict the former, confusion, opportunity for discursive advocacy and litigation may proliferate. This being the opposite of the expressed intention of those who seek to constrain conduct arguments.

There will obviously be a spectrum of qualifying conduct. Perhaps, the correct position is that the more obvious and gross it is, the more likely it is to have a direct, measurable financial impact. But that should not mean – in the language of the statute – that a measurable financial consequence is a pre-requisite to qualification. Such a proviso would require statutory language to this effect. Consider the Scottish statute – the Family Law (Scotland) Act 1985 – for confirmation of this (emphasis added):[[29]]

‘(7) … the court shall not take account of the conduct of either party to the marriage … unless—

(a) the conduct has adversely affected the financial resources which are relevant to the decision of the court on a claim for financial provision; or

(b) in relation to section 9(1)(d) or (e), it would be manifestly inequitable to leave the conduct out of account.’

The problem with procedure

The procedure ‘normally’ applicable to allegations of conduct was laid down in Tsvetkov v Khayrova[[30]] and includes this (emphasis added):

‘(vi) The court should determine at the First Appointment how to case manage the alleged misconduct … the court is entitled at that stage to make an order preventing the party who pleaded conduct from relying upon it, if the court was satisfied that the exceptionality threshold required to bring it within MCA 1973, s 25(2)(g) would not be met. The court should also take into account whether it is proportionate to permit the allegation to proceed, for a pleaded conduct claim usually has the effect of increasing costs and diminishing the prospects of settlement. Finally, the court ought to take into account whether the allegation, even if proved, would be material to the outcome.’

This would appear to envisage that, before the court has ruled on any necessary expert evidence or received focused (or tested) evidence from the accusing party, it can strike conduct from the issues (perhaps of its own motion, so without warning). Not just individual allegations but an entire – mandatory – s 25 factor removed from consideration. It is difficult to imagine how a court could make a final determination of this nature in all but the most fanciful cases without appraising evidence and at a hearing typically listed for one hour or less.

A particular question mark, arising from this procedural formulation, is the reference to ‘the exceptionality threshold’ for the purpose of removing conduct from the issues. This concept does not come from Wachtel. The suggestion seems to be, in Tsvetkov, that the conduct itself must be of an exceptional nature, whereas in Wachtel and Miller; McFarlane the Court of Appeal and House of Lords referred to exceptionality in terms of the rare occurrence of such cases where conduct is relevant. Otherwise, the statute would be impermissibly glossed. Lord Nicholls considered (emphasis added):

‘65. … In most cases fairness does not require consideration of the parties’ conduct. This is because in most cases misconduct is not relevant to the bases on which financial ancillary relief is ordered today. Where, exceptionally, the position is otherwise, so that it would be inequitable to disregard one party’s conduct, the statute permits that conduct to be taken into account.’

We must further recognise that, in the current procedural and pre-application protocol landscape, contested financial remedy applications should themselves be the exception (and probably already are, statistically). The use of litigation itself as an instrument of abuse – and the way the system can facilitate this – deserves its own piece. I would only wish to note that those cases in which every issue litigates, satellite and otherwise, deserve their red flag.

The Supreme Court has, at least twice, in recent times reiterated the broad procedural landscape for s 25 purposes, which applies regardless of the nature of the case. For example, in Wyatt v Vince,[[31]] Lord Wilson said (emphasis added):

‘by Rule 1.4(1) of the family rules, the court must further the overriding objective by actively managing cases, which, by Rule 1.4(2)(b)(i) and (c), includes promptly identifying the issues, isolating those which need full investigation and tailoring future procedure accordingly. This exercise will dictate the nature, and in particular the length, of the substantive hearing. No doubt the High Court judge who, in the present case, directed, even prior to the filing of evidence on either side, that the wife’s application should be fixed to be heard for three days was seeking to help the parties to procure an early fixture. But, by so doing, he was not discharging his duty under Rule 1.4. Family courts have developed specific procedures for the determination of certain types of financial application. The obvious example is the determination of an application on a summons to a respondent to show cause why the order should not be in the terms with which, prior to an attempt to resile from them, she or he had agreed either following the separation (Dean v Dean [1978] Fam 161) or prior to the marriage (Crossley v Crossley [2007] EWCA Civ 1491, [2008] 1 FLR 1467). In both cases, however, the court stressed that the show-cause procedure did not obviate the need for the court to discharge its duty under section 25 of the 1973 Act, powerful though the effect of the agreement would, within that exercise, probably prove to be.’

Practitioners will have to ask themselves whether the current formulation of the evolving procedure applicable to conduct assertions – or their professional approach to that formulation – operates to diminish the primacy of the s 25 exercise and risks Art 6 infringement. The current procedural approach to conduct is not replicated, for example, with nuptial agreements that may be so obviously impugned as to be unlikely to make any difference to the outcome or to extremely long delay cases or to inconsequential assertions of non-matrimonial wealth, for example. These issues are allowed to run their course.

The problem with the s 25(2)(g) island

The position should be that the conduct itself need not be exceptional but ‘obvious and gross’. To introduce an exceptionality threshold for the behaviour itself risks exclusion of (arguably) unexceptional behaviour – say, a sustained pattern – which may on examination (i.e. at trial) have an exceptional impact. The removal of the fob for the electric gate in Clark comes to mind.

In this connection, we can turn to related jurisprudence. As noted above, non-violent abusive conduct or coercive control can impact the outcome of:

(1) applications for child arrangements;

(2) applications for relocation of children;

(3) applications to uphold nuptial agreements;

(4) applications by lenders to enforce joint borrowing; and

(5) murder charges.

Family practitioners should please read R v Challen[[32]] (see the link in the endnote to the decision quashing Mrs Challen’s murder conviction) and particularly note the post-nuptial agreement she was prepared to enter at her husband’s behest and against advice. The Challen case is also important when considering the exceptionality threshold for qualifying conduct in the financial remedies context. Before the jury, it was said of Mrs Challen:

‘She accepted that at the time of the killing she had a responsible job, presented at work in a well-dressed way, but insisted that in the summer of 2010, after nine months of living apart from the deceased, she felt depressed and flat. She said she did not visit her GP because she could not get an appointment.’

There was little seemingly exceptional about Mrs Challen’s presentation or, from the prevailing financial remedies method of measurement, her husband’s poor conduct. She carried on largely as normal, as far as the outside world would have regarded it and was initially assessed as having no severe mental health impairment as a result. It was recorded that, from what the jury heard, she had excellent attendance at work and a high level of competence, she was socially active, she went to the cinema, she visited Wisley Gardens and she went on holiday. Yet, the way Mrs Challen was treated over a long marriage and her hidden mental ill-health combined to result in her murder conviction being quashed.

In the Court of Appeal, the defence focused on the report of a Professor Stark, referencing the theory of coercive control:

‘In coercive control, abusers deploy a broad range of non-consensual, non-reciprocal tactics, over an extended period to subjugate or dominate a partner, rather than merely to hurt them physically. Compliance is achieved by making victims afraid and denying basic rights, resources and liberties without which they are not able to effectively refuse, resist or escape demands that militate against their interests.’

This is important to bear in mind when assertions are made about how an alleged victim should behave in the aftermath of alleged conduct (‘but she has sought no medical treatment, she did not call the police, she is smiling in this picture, look at this loving text message’). If there is coercive control, the victim often cannot behave in line with their own interests when they conflict with their abuser’s. This seeming inability to act to escape the impact of the abuse is precisely why, it is said, fatalities can occur. It can feel there is no other way out, according to experts in this field. Moreover, it seems that symptoms of severe mental ill-health may be masked when there is coercive control. For s 25(2)(g) purposes, the boxes at paragraphs 1.11 and 4.4 of Form E appearing empty, early in a case, spring to mind. If part of the pattern of abuse and control has been to allege paranoia or ‘madness’ on the victim’s part, no one should be surprised when that victim is resistant to enquiry into his or her mental state or is, initially, insisting that they are quite well.

In Mrs Challen’s case, it was asserted that, ‘Only since the appellant has lived apart from the coercive control has the true nature and etiology (sic) of her personality disorder and mood disorder could be diagnosed’.

Obviously, spouses remain under the same roof or in very close psychological quarters, often by reason of litigation, after separation. An accuser’s cognition, instructions and actions, for s 25(2)(g) purposes, may be blighted and their symptoms masked in the period of the Tsvetkov procedural timeframe.

These considerations are well rehearsed in family law and practice in children cases. For example, in Re O (Domestic Abuse: International Relocation)[[33]] Cobb LJ recorded,[[34]] ‘It is widely accepted that victims of domestic abuse do not always recognise the abuse, and/or its impact, when they are living with it; many live in a state of denial even as it is happening’.

In Re H-N[[35]] the President stressed that[[36]] ‘a pattern of coercive and/or controlling behaviour can be as abusive as or more abusive than any particular factual incident that might be written down and included in a schedule in court proceedings (see “Scott Schedules” at paragraph 42–50)’.

The President went to consider the procedural practice of weeding out (apparently) lesser allegations in this context:[[37]]

‘the parties were required to “limit” the allegations to be tried to ten and the judge at trial further reduced the focus of the hearing by directing that only three would be tried. It was submitted that that very process of directed selection, produces a false portrayal of the couple’s relationship. If such an applicant succeeds in proving the three remaining allegations, there is a risk that the court will move forward on the basis that those three episodes are the only matters “proved” and therefore the only facts upon which any adverse assessment of the perpetrator’s future risk falls to be made. By reducing and then further reducing its field of focus, the court is said to have robbed itself of a vantage point from which to view the quality of the alleged perpetrator’s behaviour as a whole and, importantly, removed consideration of whether there was a pattern of coercive and controlling behaviour from its assessment.

46. For our part, we see the force of these criticisms and consider that serious thought is now needed to develop a different way …’

It is unclear why these considerations, underpinned by expertise in the field, do not routinely make their way into financial remedies practice. Yes, the statutory targets of the evidence are different in children and finance cases. But this does not explain why the procedural approach should be (radically) so. If the use of the Scott Schedule format of pleading may rob the court of a factual ‘vantage point’ in children proceedings, why not the same concern in financial cases?

I would not wish to say that any of the reported decisions in recent years on s 25(2)(g) conduct were wrong or that our judiciary routinely make errors in this sphere. This is despite the extreme pressures of work the Family Court judiciary face against a backdrop of growing vulnerability and complexity within cases. The conditions under which the judiciary are operating, though, should not cloud the interpretation of s 25(2)(g). This is not least because cases involving serious abuse, but which are not ‘run’ on conduct, tend to litigate vociferously anyway.

However, there have been some decisions which are difficult to square. In fairness, the jurisprudential landscape, as sketched out in this piece, is not especially helpful for our diligent, overworked, under-appreciated – generally excellent – judiciary.

It would be possible to hold up various pairs of cases and suggest that their outcomes, when compared, are head-scratching. But unhappy pairings are not uncommon in our field (looking at you: Matthews[[38]] and SRJ v DWJ[[39]] on whether or not the statute contains a presumption in favour of a clean break). The Law Commission[[40]] has already opined that financial remedies law is, arguably, inconsistent with the rule of law for its uncertainty and inaccessibility. It must now be widely accepted that conduct emerges – from various reports and authorities – as a special case for the wrong reasons. If conduct can lead to a party receiving less than their needs,[[41]] should it not also be capable of leading to a party receiving more than their needs? If making false allegations of domestic abuse can qualify as conduct, surely, ergo, actual domestic abuse itself must qualify as a matter of logic?

Of the recent decisions, perhaps the conduct finding against the wife in FRB v DCA No 2[[42]] merits a few probing questions in the context of the debate about domestic abuse and its place within the s 25(2)(g) conduct parameters. Again, this is not to say the ruling on conduct was wrong, having turned on its own unique facts and given the way the case was argued. The question marks arise from subsequent judicial reliance on this decision in furtherance of the measurable impact proviso for conduct allegations.

This case established that it can be qualifying conduct to fail to admit during the initial years of a child’s life that their father may not, in fact, be the husband as he believed himself to be. It was not in dispute that the child was a child of the family or that the husband would continue to be a loving father figure to the child (his only child). It is relatively obvious that men who father children outside their marriages and conceal the fact are not usually regarded as guilty of s 25(2)(g) ‘conduct’ in the current era. The first problem, therefore, is that this conduct can only be committed by women.

It was accepted that: (1) the wife did not know for certain, at the time, she was carrying another man’s child; and (2) she desperately wished to close her mind to the possibility that another man was her child’s father. After the child arrived, she put the unconfirmed risk to the back of her mind. Two things tipped this into conduct that it would be inequitable to disregard: the wife’s silence over the years and the devastating impact on the husband when he discovered the truth during the proceedings. There was no medical evidence[[43]] about the impact on the husband, only his self-interested evidence, which self-interest also led him to a material failure to make full and frank disclosure.

As for the wife’s silence, it was said in N v J,[[44]] ‘It is not hard to see how that may have caused the husband financial as well as emotional damage, as he paid for the child’s upbringing’. This explanation seems to sidestep that the husband’s financial obligations arose as a matter of statute as the child was a child of the family, which includes non-biological children. The statute necessarily ignores how conception came about (think Sch 1 and the one-night-stand). The suggested emotional damage, on its own, did not have a financial consequence and, again, was not the subject of expert evidence.

This view also ignores the adage, in the financial remedies context, that children change everything.[[45]] In the wife’s shoes (once the child was here), what she failed to admit to her husband, when viewed from a parenting perspective, is somewhat understandable or, at least, not very surprising. She behaved badly and dishonestly but with the aim to keep her family unit intact. An instinct most people would recognise as unexceptional.

Finally, the approval of the – moral – judgement of the wife in FRB returns us to that shrinking island. There is plentiful authority on involuntary parenthood in the clinical negligence/wrongful birth sphere. The general rule, in that context, is that the financial cost of raising a healthy, unwanted child cannot be recovered against negligent clinicians. As Lord Bingham[[46]] put it, there is ‘an unwillingness to regard a child (even if unwanted) as a financial liability and nothing else, a recognition that the rewards which parenthood (even if involuntary) may or may not bring cannot be quantified …’. In short, the unintended or involuntary arrival of a healthy, loved child is, for the law’s purposes, a blessing, not a liability, and any other outcome would involve territory too problematic to cross.

In a sense the FRB quandary encapsulates the entire problem: people can be devastatingly hurt by their spouses’ actions or inaction but strong views about the role of s 25(2)(g) conduct – whether on the part of litigants, practitioners or judges – do not influence the test. The statute sets the task and the test – without reference to morality or consequences or causation – and, beyond that, the less said the better.

Problem solved?

This is an opinion piece from an opinion-holder whose opinions can change. It is not legal advice and it is not intended to be comprehensive. It should not be relied upon for professional purposes.

[[1]]: Resolution, Domestic abuse in financial remedy proceedings, October 2024, https://resolution.org.uk/wp-content/uploads/2024/10/Resolution_DAFRP_Report_ONLINE.pdf

[[2]]: Prest v Petrodel Resources Ltd & Ors [2013] UKSC 34.

[[3]]: Prest v Petrodel at [37].

[[4]]: Re H-N [2021] EWCA Civ 448.

[[5]]: Re O (Domestic Abuse: International Relocation) [2025] EWCA Civ 888.

[[6]]: PN v SA [2025] EWFC 141.

[[7]]: Waller-Edwards v One Savings Bank [2025] UKSC 22. For this purpose, we might assume that undue influence, duress and misrepresentation (terms in use in the commercial context) by one intimate partner of another to extract financial gain, would be tantamount to economic abuse or coercive control in the family context.

[[8]]: R v Challen [2019] EWCA Crim 916, www.judiciary.uk/wp-content/uploads/2019/06/challen-approved.pdf

[[9]]: Wachtel v Wachtel [1973] Fam 72.

[[10]]: Miller v Miller; McFarlane v McFarlane [2006] UKHL 24.

[[11]]: For example, Wachtel v Wachtel at p 80 (emphasis added), ‘Conduct subsequent to the separation by either spouse may affect the discretion of the court in many ways, e.g. the appearance of signs of financial recklessness in the husband or of some form of socially unacceptable behaviour by the wife which would suggest to a reasonable person that in justice some modification to the order ought to be made’.

[[12]]: As Baroness Hale discusses at [145] of Miller; McFarlane.

[[13]]: Wachtel v Wachtel at p 79E.

[[14]]: Tsvetkov v Khayrova [2023] EWFC 130 at [43]–[45].

[[15]]: Wachtel v Wachtel at p 90.

[[16]]: Miller; McFarlane at [61].

[[17]]: Miller; McFarlane at [145].

[[18]]: Tsvetkov v Khayrova [2023] EWFC 130 at [43]–[45].

[[19]]: Goddard-Watts v Goddard-Watts [2023] EWCA Civ 115.

[[20]]: N v J [2024] EWFC 184.

[[21]]: H v H (Financial Relief: Attempted Murder as Conduct) [2005] EWHC 2911 (Fam), [2006] 1 FLR 990 at [44].

[[22]]: https://financialremediesjournal.com/reflecting-domestic-abuse-in-financial-proceedings-a-comparative-analysis-of-english-and-australian-approaches-since-the-family-law-amendment-no-2-act-2024/ and Michael Allum et al, ‘Domestic Abuse in Financial Remedy Proceedings: What lessons can be learned from Australia?’ [2025] 1FL 30.

[[23]]: Clark v Clark [1999] 2 FLR 498.

[[24]]: Despite the reliance placed upon it by Moylan LJ in Rothschild v De Souza [2020] EWCA Civ 1215, [2021] 1 FLR 996 at [70] and [71].

[[25]]: Clark v Clark at p 509.

[[26]]: Hart v Hart [2017] EWCA Civ 1306 at [96] and [97].

[[27]]: www.bailii.org/ew/cases/EWCA/Civ/2017/1306.html

[[28]]: Miller; McFarlane at [146].

[[29]]: Family Law (Scotland) Act 1985, s 11.

[[30]]: Tsvetkov v Khayrova [2023] EWFC 130.

[[31]]: Wyatt v Vince [2015] UKSC 14 at [29].

[[32]]: R v Challen [2019] EWCA Crim 916, www.judiciary.uk/wp-content/uploads/2019/06/challen-approved.pdf

[[33]]: Re O.

[[34]]: Re O at [101].

[[35]]: Re H-N.

[[36]]: Re H-N at [31].

[[37]]: Re H-N at [45].

[[38]]: Matthews v Matthews [2013] EWCA Civ 1874.

[[39]]: SRJ v DWJ [1999] 2 FLR 176.

[[40]]: https://cloud-platform-e218f50a4812967ba1215eaecede923f.s3.amazonaws.com/uploads/sites/54/2024/12/Financial-Remedies-scoping-report-Dec-24-1-3.pdf

[[41]]: Rothschild v De Souza at [98].

[[42]]: FRB v DCA No 2 [2020] EWHC 754 (Fam).

[[43]]: In another context, this has been fatal to consideration of the impact of behaviour: UD v DN [2021] EWCA Civ 1947.

[[44]]: N v J at [32].

[[45]]: Holman J in Murphy v Murphy [2014] EWHC 2263 (Fam).

[[46]]: Rees v Darlington Memorial Hospital NHS Trust [2003] UKHL 52 at [6].