Will My Husband’s Behaviour Affect My Divorce Financial Settlement, Section 25 UK Law Explained
In Brief
In some situations, spousal behaviour can affect the quantum and structure of a financial settlement. The family court considers the factors in Section 25 of the Matrimonial Causes Act 1973 (MCA) when making a financial court order. Conduct is one of the MCA factors a judge must consider when deciding which financial court order achieves a fair financial settlement that meets both parties' reasonable needs.
Section 25(2)(g) of the MCA states that the conduct should be considered by the judge if it would be inequitable to disregard it.
It's best to ask a Family Law Solicitor if your spouse’s behaviour meets the Section 25(2)(g) MCA threshold before you start family mediation or negotiate a settlement. Without specialist legal advice, you may have an unrealistic expectation of the court's approach to a spouse’s behaviour, and this may prevent you from reaching a financial settlement. Alternatively, if your spouse’s behaviour is continuing, your Family Lawyer may need to take court action to protect you with a financial Section 37 injunction or domestic abuse injunction.
What is Conduct in Financial Settlement Proceedings?
It is hard to give a definitive answer to what amounts to conduct to entitle a spouse to a larger slice of the family assets or to argue that a financial settlement should be structured in a particular way.
Specialist Family Law Solicitors will be reluctant to explore the conduct of your spouse if it is likely that:
- Obtaining evidence about the bad behaviour is unlikely to affect the financial settlement but will increase legal costs, and
- The judge is unlikely to order that your spouse pay all or a contribution towards your legal fees.
A lawyer will consider these points because, while your spouse’s behaviour will rightly colour your attitude towards them and your marriage, you will not want your Family Law Solicitor to pursue a line of enquiry that will not alter your financial settlement because the conduct complained of does not meet the MCA threshold.
Arguing Conduct in Financial Remedy Proceedings
In the court case of Tsvetkov v Khayrova [2023] EWFC 130, the court set out a two-stage test for spouses who are arguing that the court should consider conduct as a Section 25 factor:
Stage one -the person alleging conduct must prove:
- The conduct facts, and
- The conduct threshold is met – the conduct is inequitable to disregard, and
- Negative financial impact from the conduct.
Stage two - if the wronged spouse establishes the threshold in stage one, the court should consider how the conduct and its consequences should impact the financial remedy proceedings.
Form E Financial Disclosure and Conduct
At any early stage in the financial remedy application process, a party is required to say whether they are alleging that the court should consider their spouse’s behaviour. This is because the Form E financial disclosure requires a spouse to complete a section on their spouse’s behaviour. The Form E warns that the court will consider behaviour only in very exceptional circumstances.
At the First Directions Appointment hearing (FDA), the court will consider whether a spouse should file a detailed statement and whether the other spouse should be allowed to file a statement in response. The FDA enables the court to gatekeep behavioural allegations and to order the filing of evidence only if the judge considers it proportionate to the issues.
The Timing of Conduct and its Relevance to the Financial Settlement
Conduct can occur before, during or after a separation. If the conduct occurred before the marriage or at an early stage in the marriage, the court may need to be persuaded of its relevance to the financial settlement.
It is important to discuss any concerns about spousal behaviour with your Family Law Solicitors. Concerning behaviour before or shortly after the marriage may still be of relevance, depending on its impact. A solicitor can advise on the likely relevance of behaviour and ensure that you are aware of the court's approach to spousal conduct. This advice may give you the confidence to accept a financial settlement negotiated by your Family Law Solicitor or through family mediation.
Conduct that is Inequitable to Disregard
What one spouse views as conduct inequitable to disregard, others view as part of the give and take of married life.
What is equally difficult to get to grips with is that the same spousal behaviour can have very different outcomes. For example:
- A husband has an affair, and the marriage breaks down. This type of behaviour will not normally meet the conduct threshold. However, the behaviour could be relevant if, for example, the wife has a breakdown and is medically unfit to return to work.
- A wife is planning to separate from her husband and therefore transfers assets to her sibling. This post-separation conduct may not be relevant if the transferred funds are non-family assets that the husband would not have been entitled to share, since his needs can be met by sharing the family assets with his wife.
Divorce Financial Settlement Solicitors have the skill and expertise to advise on the likely relevance and cost proportionality of raising conduct allegations. Early legal advice and detailed discussion are key to identifying potential behaviour issues and agreeing on the best approach to help achieve a fair financial settlement.
Types of Inequitable Conduct
Bad behaviour or inequitable conduct in financial negotiations or financial remedy proceedings generally falls into four categories:
- Gross and obvious behaviour.
- Financial disclosure related conduct.
- Financial expenditure or addback.
- Course of conduct during the financial remedy application.
Gross and Obvious Behaviour
Although conduct may have been reprehensible and a marriage ender, the threshold for it to be relevant to the financial remedy proceedings is that the gross and obvious behaviour should normally have had some financial impact on the wronged spouse. An example of this is the memorable case of when a spouse injured their partner. Not only was the conduct gross and obvious, but it also impacted the wife’s earnings capacity.
Domestic Abuse, Coercive Control and Section 25 of the Matrimonial Causes Act 1973
Until recently, domestic abuse and coercive or controlling behaviour were rarely pleaded as conduct in financial remedy proceedings.
However, in the 2025 court case of LP v MP [2025] EWFC 473, the judge said that if a spouse had engaged in coercive and controlling behaviour, even if it did not result in a measurable financial impact, it did not mean there was no financial impact. Therefore, conduct could be considered even where there was no quantifiable financial impact if it would otherwise be unfair to ignore the behaviour.
This case does not give the green light to argue conduct in all cases where a finding of domestic abuse has been made. Family Law Solicitors and the court will always want to carefully assess whether the additional legal costs in advancing the argument are likely to be cost-proportionate.
Financial Disclosure Related Conduct
If a spouse fails to provide full financial disclosure, the wronged spouse can plead bad behaviour and ask the court to:
- Make cost orders if the wronged spouse has had to spend additional money on lawyers or shadow accountants in tracing assets and analysing inadequate or misleading financial disclosure.
- Draw adverse inferences against the spouse and to find that the spouse does have access to additional monies. For example, where a spouse is self-employed, and their provable personal expenditure is inconsistent with their disclosed income and financial disclosure.
- Structure a financial court order that reflects the court's views on the spouse’s behaviour. For example, awarding a lump sum to capitalise spousal maintenance claims because the court accepts the argument that the wronged spouse cannot rely on their ex to comply with a court order.
Financial Expenditure and Addback
Unfortunately, some spouses spend or transfer money to deliberately try to reduce their husband or wife’s financial settlement in the mistaken belief that their spouse won't know that the family assets have been depleted or that they will ‘get away with it.’ Alternatively, a spouse may argue that their spouse’s quantifiable wanton expenditure on specific issues, such as post-separation gambling, should be added back.
If your Property and Divorce Solicitors can identify the amount of the transferred funds and it is cost proportionate to advance an addback argument (££££ and not £ taken), then the judge will be asked to add-back the disposed funds (even though they have disappeared) so the disposing spouse’s share of the family wealth reflects the money they have dissipated.
Course of Conduct During the Financial Remedy Application
Conduct during financial remedy proceedings is referred to as litigation misconduct. If a spouse’s behaviour has resulted in additional costs, the wronged spouse can ask the court to order that their spouse pays the costs of a specific hearing or pays a proportion of their overall costs.
Examples of litigation misconduct include:
- Failure to file a Form E in accordance with the court timetable requires a spouse to apply to the court for enforcement of the Form E filing.
- Not completing the Form E fully or honestly requires Family Finance Solicitors to file additional disclosure requests and questionnaires.
- Not disclosing relevant information, such as a third-party offer to buy shares in a family business, so one spouse is unaware of the potential value of the shareholding.
Talk to a Family Law Solicitor
The family law team at OTS Solicitors in London can help you with all your family law-related needs, including:
- No-fault divorce
- Financial remedy applications.
- Converting your mediated agreement or separation agreement into a financial court order.
- Advice on child maintenance.
- Parenting arrangements advice and child arrangement order applications.
Appointments are available at our London office, by phone, or via online video consultation.
Our lawyers speak Arabic, Armenian, Farsi, French/Mauritian Creole, Spanish, Tamil, Tagalog/Ilonggo, and Urdu/Punjabi.
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