The Evolution of Conduct Under Section 25 of the Matrimonial Causes Act 1973
GGS-003
Section 1
The Evolution of Conduct Under Section 25 of the Matrimonial Causes Act 1973
1.1 Introduction
The law governing financial remedies in England and Wales has long recognised that personal conduct may, in exceptional circumstances, influence the financial outcome of divorce proceedings. Section 25(2)(g) of the Matrimonial Causes Act 1973 ("MCA 1973") provides that the court shall 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."
Although the statutory language has remained unchanged for over five decades, judicial interpretation has progressively narrowed the circumstances in which conduct will affect financial relief. The modern authorities consistently emphasise that financial remedy proceedings are not intended to punish marital misconduct, revisit the emotional breakdown of relationships, or allocate moral blame between parties. Instead, the court's primary objective remains the achievement of a fair financial outcome having regard to the statutory factors contained within section 25 MCA 1973.
Against this background, the treatment of domestic abuse within financial remedy proceedings presents an increasingly significant jurisprudential challenge. Modern understandings of coercive control, economic abuse and post-separation abuse have evolved considerably since the enactment of the MCA 1973, raising important questions about whether existing approaches to conduct continue to reflect contemporary understandings of fairness.
1.2 The Historical Approach to Conduct
Historically, English family law has deliberately distinguished financial relief from fault-based divorce.
While matrimonial conduct may explain why a marriage ended, Parliament did not intend every allegation of poor behaviour to influence the division of matrimonial assets. Financial remedy proceedings therefore developed around the principle that conduct should remain exceptional rather than routine.
This distinction serves important public policy purposes.
If every allegation of marital misconduct became financially relevant, financial remedy litigation would risk becoming an inquiry into every disagreement, argument or personal failing occurring throughout a marriage. Such an approach would increase cost, prolong litigation and undermine the objective of achieving practical financial resolution.
Accordingly, judicial authority has consistently treated section 25(2)(g) as a narrow gateway rather than a general licence to investigate relationship behaviour.
1.3 Wachtel and the Exceptional Nature of Conduct
One of the earliest and most influential authorities remains Wachtel v Wachtel [1973] Fam 72.
Although decided shortly after the enactment of the MCA 1973, the judgment established a principle that continues to influence modern financial remedy jurisprudence.
The Court recognised that Parliament had intentionally moved away from a system in which financial consequences routinely followed marital fault. Conduct would therefore justify financial adjustment only where it reached a level that made it genuinely inequitable to disregard.
The decision established an enduring distinction between:
ordinary marital misconduct; and
conduct sufficiently serious to justify financial consequences.
This distinction became the foundation upon which subsequent authorities developed the modern conduct jurisdiction.
1.4 Fairness After Miller
The decision of the Miller v Miller; McFarlane v McFarlane marked a significant development in the modern law of financial remedies.
The House of Lords reframed financial relief around the overarching principle of fairness, identifying three broad strands underpinning judicial decision-making:
needs;
compensation; and
sharing.
Although the case did not fundamentally alter the conduct jurisdiction, it reinforced an important conceptual point.
Fairness should ordinarily be achieved through objective financial principles rather than through punishment for relationship behaviour.
Conduct therefore remained exceptional.
The emphasis shifted increasingly towards achieving fair outcomes rather than assigning responsibility for marital breakdown.
1.5 Modern Clarification
More recent authorities have continued to reinforce the exceptional character of conduct.
In N v J [2024] EWFC 184, Peel J reviewed the modern authorities and reaffirmed that conduct remains relevant only in highly exceptional circumstances. The judgment emphasised that increased societal awareness of domestic abuse does not, of itself, lower the statutory threshold contained within section 25(2)(g).
The significance of this observation should not be underestimated.
The judgment does not minimise domestic abuse.
Rather, it confirms that recognition of abuse within wider family law does not automatically alter the established conduct jurisprudence governing financial remedies.
Consequently, two legal developments have proceeded simultaneously:
expanding legal recognition of domestic abuse; and
continued judicial restraint regarding financial conduct arguments.
The resulting tension provides the context for contemporary debate.
1.6 LP v MP and the Emerging Debate
The decision in LP v MP [2025] EWFC 473 represents an important contribution to this developing area.
The judgment demonstrates that domestic abuse may be relevant within financial remedy proceedings where its financial consequences are properly evidenced and where the statutory requirements remain satisfied.
Importantly, however, the judgment does not abandon the traditional conduct framework.
Nor does it establish that every finding of domestic abuse will automatically affect financial distribution.
Instead, it illustrates the continued judicial effort to reconcile two evolving legal realities:
contemporary understanding of coercive control and domestic abuse; and
the long-established principle that conduct should remain exceptional.
The decision therefore opens an important discussion rather than finally resolving it.
1.7 The Emerging Jurisprudential Question
The central issue may no longer be whether coercive control should qualify as conduct.
A different question is beginning to emerge.
If coercive control materially affects financial outcomes by limiting employment, impairing earning capacity, creating debt, restricting access to resources, concealing assets or distorting disclosure, should those financial consequences remain analytically separate from the assessment of fairness?
This paper does not suggest that section 25(2)(g) should become a mechanism for introducing fault-based divorce through financial proceedings.
Rather, it proposes that financial fairness may require greater attention to the financial architecture created by coercive control itself.
The distinction is significant.
The question is no longer simply whether conduct was exceptional.
The question increasingly becomes whether the financial consequences of abusive behaviour have fundamentally distorted the fairness of the financial landscape before the court.
That distinction provides the foundation for the remainder of this paper.
The following section examines why domestic abuse should increasingly be understood not only as interpersonal harm, but also as a financial phenomenon capable of reshaping virtually every aspect of financial remedy proceedings.
Copyright
© 2026 Samantha Avril-Andreassen. All rights reserved.
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This paper forms part of the SAFECHAIN™ Global Governance Series™.
GGS-003 — The Glass Through Which Fairness Is Assessed™ is an original scholarly work authored by Samantha Avril-Andreassen. The concepts and methodologies presented herein, including Financial Remedy Integrity™, Recognition Intelligence™, Participation Integrity™, Disclosure Integrity™, Coercive Debt Assessment™, and related SAFECHAIN™ frameworks, are protected intellectual property.
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