Introduction
The law governing the division of finances upon divorce in England and Wales is primarily contained within the Matrimonial Causes Act 1973 (MCA 1973). The court's objective under section 25 of this Act is to achieve a fair outcome by considering a range of specified factors. One of the most contentious of these is section 25(2)(g), which allows the court to consider the conduct of the parties if it would be “inequitable to disregard it”. Historically, the courts have set a very high threshold for what constitutes such conduct, effectively creating a 'no-fault' approach to financial settlements, mirroring the recent legislative shift in divorce law itself. This position has attracted criticism, particularly concerning cases involving domestic abuse, where one party's behaviour has had a profound and lasting impact on the other. This essay will examine the current law on conduct in financial remedy proceedings and explore the arguments for and against giving domestic abuse greater significance. It will conclude by arguing that while a return to a fault-based system is undesirable, the financial consequences of domestic abuse should be given greater, more explicit weight, potentially through a more flexible interpretation of the existing section 25 factors.
The Current Legal Position: The "Inequitable to Disregard" Hurdle
When a court decides how to distribute assets on divorce, its duty is to consider "all the circumstances of the case", with the first consideration being the welfare of any minor children of the family (MCA 1973, s.25(1)). Section 25(2) lists specific factors the court must pay regard to, including the parties' financial needs, resources, and contributions. Tucked within this list is section 25(2)(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." The wording itself suggests that conduct is not a primary consideration but is to be invoked only in exceptional circumstances.
The judicial interpretation of this clause has cemented a very high bar for its application. The foundational case is Wachtel v Wachtel [1973] Fam 72, where Lord Denning MR, keen to avoid lengthy and bitter investigations into marital blame, stated that the court should not engage in a “retrospective of the course of the marriage” and that conduct should only be taken into account where it is “obvious and gross” (Wachtel v Wachtel, p. 82). This approach was designed to prevent the acrimony of fault-based divorce from spilling into the financial proceedings, saving cost, time, and emotional distress.
This high threshold has been consistently upheld. In the landmark House of Lords decision of Miller v Miller; McFarlane v McFarlane [2006] UKHL 24, Lord Nicholls of Birkenhead affirmed the "obvious and gross" test, adding that for conduct to be relevant, it must be of a character that would cause a reasonable person to "gasp" (Miller; McFarlane, [65]). He stated that a spouse’s conduct during the marriage would not normally be relevant to the division of property, as the court is not a forum for moral judgment. Similarly, in K v L [2011] EWCA Civ 550, a husband who had been convicted of serious sexual offences against the wife’s grandchildren from a previous relationship was not found to have his award reduced on the grounds of conduct, confirming the extreme reluctance of the courts to apply section 25(2)(g).
Cases where conduct has successfully been pleaded are rare and usually involve extreme behaviour with a direct financial link. For example, in H v H (Financial Relief: Conduct) [2006] 1 FLR 990, a husband who attacked his wife with a knife, leaving her with severe long-term injuries, had his financial award significantly reduced. The court reasoned that the attack had a direct and lasting impact on the wife's earning capacity, thus making it inequitable to disregard. This demonstrates that conduct is more likely to be considered relevant when it has a clear and quantifiable financial impact, rather than just being morally reprehensible.
Arguments for Giving Domestic Abuse Greater Weight
The restrictive judicial approach to conduct has led to calls for reform, with many arguing that it fails to deliver justice for victims of domestic abuse. One central argument is that the effects of domestic abuse often have direct and severe financial consequences which are not adequately recognised under the current framework. The expansive definition of domestic abuse in the Domestic Abuse Act 2021, which includes physical, emotional, and economic abuse, highlights the multifaceted nature of such behaviour. Economic abuse, for instance, can involve a perpetrator preventing their partner from working, controlling their access to money, or running up debts in their name. This directly impacts the victim's ability to achieve financial independence post-divorce and creates significant "needs" under section 25(2)(b) of the MCA 1973. By refusing to properly consider the abusive behaviour that led to this predicament, the courts risk overlooking the causal link between the conduct and the resulting financial disparity.
Furthermore, critics argue that the "no-fault" ethos, while well-intentioned, can be taken too far. The introduction of 'no-fault' divorce under the Divorce, Dissolution and Separation Act 2020 was aimed at reducing conflict in the legal process of ending a marriage. However, extending this principle to completely ignore severe misconduct in the financial settlement can appear unjust. Herring (2021) suggests that there is a difference between the "unhappiness, disappointments, and failings" of a normal marriage and severe abuse, and the law should be capable of distinguishing between them. To treat a marriage ending due to an affair the same as one ending due to years of violent or coercive control seems to ignore the reality of the victim's experience and their compromised position in negotiations and litigation.
A related point of criticism is the vagueness and subjectivity of the "gasp factor" test from Miller. What causes one judge to "gasp" may not affect another in the same way. This creates legal uncertainty and may discourage victims from even raising the issue of abuse. The test appears to favour sensational, single acts of violence, like the attack in H v H, over the insidious and cumulatively devastating impact of long-term coercive control. This narrow focus fails to align with the modern understanding of domestic abuse, which recognises that non-physical abuse can be just as harmful. Giving domestic abuse greater weight would involve creating a more structured and less subjective test that recognises the full spectrum of abusive behaviours and their financial consequences.
The Case Against Change: Preserving a No-Blame System
Despite these criticisms, there are powerful arguments for retaining the current restrictive approach. The primary justification, articulated in Wachtel, remains the avoidance of acrimony and cost. If allegations of domestic abuse were to become a routine feature of financial remedy proceedings, hearings would inevitably become longer, more complex, and more expensive. Parties would be incentivised to make allegations and counter-allegations about marital behaviour, turning the process into a bitter post-mortem of the relationship. This would deplete the very assets the court is trying to divide and would be particularly damaging for any children involved, exacerbating parental conflict.
There are also significant evidential challenges. Allegations of domestic abuse, particularly those concerning psychological or emotional abuse, are often notoriously difficult to prove. They frequently occur in private, with little or no corroborating evidence. Financial remedy proceedings are not equipped to handle such complex factual disputes, which would require extensive evidence, cross-examination, and judicial fact-finding exercises. This would risk turning ancillary relief hearings into proxy criminal trials, a role for which they are ill-suited. As Mostyn J noted in OG v AG [2020] EWFC 52, it is crucial that the court's focus remains on the financial aspects, as its "forensic firepower" is limited.
Finally, it is argued that the purpose of financial remedies is not to punish wrongdoing but to provide for the future needs of the parties and to distribute assets fairly. The law of tort allows a party to sue for personal injury, and the criminal law exists to punish assault. In Jones v Jones [1976] Fam 8, the court emphasised that financial provision on divorce is not about awarding damages or imposing a penalty. To use the financial remedy process to punish a party for their conduct would be to confuse its fundamental purpose. The focus should remain on achieving a fair distribution based on the section 25 factors, with 'needs' being the dominant principle, rather than reintroducing fault through the back door.
A Potential Way Forward: Focusing on Financial Consequences
The debate is not necessarily a binary choice between the current high bar and a full-blown fault-based system. A potential middle ground, and one that is gaining traction in the judiciary, is to move away from conduct as a standalone moral issue and instead focus explicitly on its financial consequences. This approach is consistent with the principles of the MCA 1973 but allows for greater recognition of the impact of abuse.
The judgment of Mostyn J in OG v AG [2020] EWFC 52 provides a clear articulation of this approach. He argued that conduct should only be considered where it has produced a "financially measurable" impact. For example, if a wife's career and earning capacity were demonstrably damaged because of the husband's abusive behaviour, this could be translated into a larger 'needs' award or a 'compensatory' award, reflecting the principle from McFarlane. This is not about punishing the husband for his behaviour per se, but about compensating the wife for the financial loss she has suffered as a result. By a similar token, if a party has recklessly dissipated assets, this is a form of financial misconduct that is directly relevant to the quantum of the award.
This "financial consequences" approach has several advantages. It allows the court to recognise the real and tangible effects of domestic abuse without opening the floodgates to general mud-slinging. It keeps the focus on the economic purpose of the proceedings and ties any adjustment directly back to the factors in section 25, such as needs (s.25(2)(b)), earning capacity (s.25(2)(a)), and contributions (s.25(2)(f)). It is a more principled and less subjective basis for intervention than the "gasp factor". This would allow the court to address the financial disadvantage caused by domestic abuse without having to conduct a full moral inquiry into the marriage.
Conclusion
The question of whether domestic abuse should be given greater weight in financial remedy decisions is complex, balancing the pursuit of individual justice against the pragmatic need for an efficient and conflict-minimising system. The current law, defined by the "obvious and gross" and "gasp factor" tests, sets an extremely high bar which arguably fails to adequately address the severe financial impact that domestic abuse can have on a victim's life. While there are valid concerns that lowering this bar could reintroduce fault-based acrimony and evidential difficulties into financial proceedings, the current position can appear unjust.
This essay has argued that a wholesale move to a fault-based system would be a retrograde step. However, the law should not remain static. A more nuanced approach is required, one that gives greater weight to the financial consequences of domestic abuse. The framework proposed in OG v AG, which focuses on quantifiable financial detriment, offers a logical and fair path forward. By assessing the impact of abuse through the established lenses of needs, earning capacity, and contributions, the courts can provide a just remedy for victims without abandoning the core principle that financial proceedings are not for punishing marital misconduct. Therefore, domestic abuse should be given greater weight, not as a standalone factor for moral condemnation, but as a crucial part of the context in which the court assesses the financial needs and resources of the parties to achieve a fair outcome.
References
Gilmore, S. and Glennon, L. (2018) Hayes and Williams' Family Law. 6th edn. Oxford: Oxford University Press.
Herring, J. (2021) Family Law. 10th edn. Harlow: Pearson.
Cases
H v H (Financial Relief: Conduct) [2006] 1 FLR 990
Jones v Jones [1976] Fam 8
K v L [2011] EWCA Civ 550
Miller v Miller; McFarlane v McFarlane [2006] UKHL 24
OG v AG [2020] EWFC 52
Wachtel v Wachtel [1973] Fam 72
Legislation
Divorce, Dissolution and Separation Act 2020
Domestic Abuse Act 2021
Matrimonial Causes Act 1973
