The starting point for any case that comes before the Family Court for a decision on Financial Remedy, is fairness. Whether the case dictates that needs must prevail, or equality, or sharing, fairness is paramount under the Section 25 factors (Matrimonial Causes Act 1973). As clients are often advised, conduct is a factor to be considered under Section 25, but this is an exceptionally high threshold. For conduct to be taken into consideration, generally it must be financially quantifiable, 'gross' and 'inequitable to disregard'. For this reason, a significant number of allegations can fall away from Financial Remedy Court before they are even heard. There is no rule that provides for compensatory justice and there should generally be a financial tie to the conduct (such as dissipation, gambling or litigation misconduct). Recent decisions being handed down now suggest the Family Court is increasingly willing to consider patterns of coercive and controlling behaviour when assessing fairness itself. This is a surprising development, given Practice Guidance that reminds solicitors to manage expectations and to ensure that any client is aware of the limitations of the Family Court to provide emotional support or validation.
For the above reasons, conduct has always occupied a limited and carefully defined place in these proceedings. It is a point that often surprises clients from the initial consultation. There is a widespread assumption that behaviour within a marriage will influence the eventual division of assets, but that is not how the law has developed in England and Wales and is a common misconception. Section 25(2)(g) of the Matrimonial Causes Act 1973 makes clear that conduct should not be pursued lightly.
The modern approach can be traced back to the case of Wachtel v Wachtel [1973] EWCA Civ 10, in which the Court of Appeal made clear that FR proceedings should not become a forum for examining the moral history of a marriage. That principle has remained central to the Court's approach ever since and in advice today. It was reinforced decades later in Miller v Miller; McFarlane v McFarlane [2006] UKHL 24, where the House of Lords confirmed behaviour within the relationship does not ordinarily justify a departure from the sharing principle unless it reaches a level where it would be unjust. One party sought to rely on the 'compensation principle', reflecting on the trajectory of their career and the decision for this take a back seat. The Court made it clear that this is not their primary purpose.
More recently, in OG v AG [2020] EWFC 52, Mostyn J identified the limited circumstances in which conduct is most likely to be relevant – which was a significant benefit to practitioners who are regularly encouraging clients to avoid litigation as a venting mechanism. These include cases involving obvious and gross personal misconduct, cases involving the deliberate or reckless dissipation of assets, and cases in which litigation conduct itself affects the fairness of the process (delays, incomplete disclosure, tactical avoidance). Outside those categories, arguments based on conduct rarely succeed. This approach meant that even serious difficulties within a relationship, including many forms of domestic abuse, did not translate into financial remedy unless they could be linked directly to economic consequences. The Court's reluctance to widen the role of conduct was deliberate. There has always been a concern that the inclusion of conduct on a more accessible basis would mean FR proceedings would become longer, more adversarial and significantly more expensive to resolve without much likely impact on the outcome. In addition, clients being incentivised to raise allegations and to pursue grievances, with the 'carrot' of a financial incentive, is a risky policy decision.
What has become increasingly apparent, however, is that the Court's understanding of conduct is continuing to develop, particularly where coercive and controlling behaviour forms part of the background to a relationship. The shift can be seen most clearly in Re H-N and Others (Children) (Domestic Abuse: Finding of Fact Hearings) [2021] EWCA Civ 448, which confirmed that domestic abuse must be understood as a pattern of behaviour rather than as a series of individual incidents. Although that decision arose in the context of Children Act proceedings, its reasoning has influenced the wider approach when assessing allegations of coercive and controlling behaviour. A similar recognition appears in F v M [2021] EWFC 4, where Hayden J described coercive control as insidious in nature and frequently invisible to those outside the relationship, while profoundly affecting the autonomy of the person subjected to it. What is particularly striking is that similar thinking is beginning to appear in FR decisions.
In LP v MP [2025] EWFC 473, Mr Justice Cusworth accepted that coercive and controlling behaviour within a marriage may have consequences which are not easily measurable in financial terms but may nevertheless be relevant when assessing fairness. He observed that there is a real risk of unfairness to victims of violence or coercive and controlling behaviour - if the absence of readily quantifiable financial loss prevents the Court from considering whether that behaviour should be reflected. It is expected that such examples can include 'self made' decisions that were made under duress, decisions made as a result of impacted self-esteem, and more. In doing so, he emphasised that the statutory test (being inequitable to disregard) sets a high threshold, but does not require the Court to ignore behaviour simply because it cannot be reduced to a precise financial calculation.
In a further decision arising (NG v KR (Pre-nuptial Contract) [2011] EWHC 586 (Fam) in the context of a prenuptial agreement, Mostyn J reduced H's award by several million pounds where he had withdrawn large sums from joint accounts funded by W and engaged in conduct described as 'deplorable'. Here, serious marital and litigation conduct influenced the Court's assessment of fairness, particularly where one party's behaviour has affected the financial landscape of the dispute (withdrawing funds) or the integrity of the proceedings generally.
It would be wrong to suggest that these decisions represent any departure from the statutory framework. Section 25(2)(g) remains unchanged and the threshold for conduct remains high. FR proceedings are not considering a fault-based approach and there is no indication that they will. Most cases will continue to be resolved without conduct playing any material role. What does appear to be changing, however, is the Court's readiness to look more carefully at the context in which a relationship operated where allegations of coercive and controlling behaviour arise. A cogent assessment of what took place, how it could be quantifiable, whether it has impacted the impartiality of litigation, the playing field, decision making, or assets available, is a good start.
Our firm has acted in a case recently where issues of conduct, both historic in nature and continuing after separation, were recognised by the Court as forming part of the wider context relevant to fairness between the parties. This comprised of material changes to the financial landscape, to include during proceedings (increasing use of volatile investments and unpredictable expenditure) and litigation conduct (failure to comply or to undertake appropriate enquiries to assess what is required). Those matters were identified and pleaded at the earliest opportunity within the Form E, and the Court's willingness to engage with the concept of 'adding back' dissipated funds and a conduct argument as part of the financial landscape assessment.
Conduct will always remain an exceptional feature of FR litigation. The Court's task is still to achieve fairness rather than to compensate or act as a moral decider. Recent decisions do, however, suggest a developing recognition that fairness cannot always be assessed without understanding how a relationship functioned in practice. Where coercive or controlling behaviour forms part of that background, the Court now appears more willing than in the past to consider whether the more subtle nuances of a case were shaped by this very behaviour.
If you are experiencing coercive and controlling behaviour or wish to understand how the Court would look at your finances upon separation, please contact our specialist team on 02920 023 222.
Alun Jones
Alun Jones is a specialist Family Law solicitor and the founder of Alun Jones Family Law.
Qualifying in 1994, he has worked exclusively in Family Law since 1997.
After gaining extensive experience within London, Alun returned to Wales and established his boutique practice in 2005. He advises separating families on financial matters and
Children Act disputes, combining legal expertise with a practical and client-focused approach.
