Introduction
In England the court normally focuses on financial needs and fairness when deciding divorce settlements. Only in exceptional cases will a person’s behaviour, known as “conduct in divorce”, directly reduce what they receive. This applies only where it would be unfair for a court to ignore that behaviour.
What the law says
Infidelity will generally not affect a financial settlement on divorce but bad behaviour can if sufficiently serious. Our law (s25 of the Matrimonial Causes Act 1973) specifies that the court may take into account any conduct that would be inequitable to disregard.
Serious misconduct that reduces the asset pot available for distribution on divorce will be taken into account but the reduction applied to the ‘guilty’ party is not necessarily a neat mathematical calculation as the court has a discretion and the outcome will reflect what the judge hearing the matter believes is fair in all the circumstances of that particular case.
Conduct that does NOT matter:
- Affairs
- General bad behaviour
Conduct that Does matter:
- Financial deception
- Litigation misconduct
- Dissipation of assets
The recent case of Wei-Lyn Loh v Ardal Loh – Gronager [2025] EWFC 483 provides a modern example of when conduct is taken into account as it concerns serious financial misconduct and litigation misconduct.
What happened in the Loh case?
The parties had a pre-nuptial agreement stating that the husband would receive £6.5milliion when the marriage ended. The wife was described as “enormously wealthy” and the joint accounts were funded mainly by her.
During the marriage and in court proceedings, the husband engaged in serious misconduct, including:
- Using joint marital funds to secretly finance an affair.
- Transferring significant sums, including around £1million into his own investments;
- Falsifying emails to strengthen his position in court;
- Harassing the wife including hiring a private detective and setting up a private Instagram account to unsettle her.
Because of this behaviour the Judge found that the husband had already helped himself to part of his financial settlement and that his conduct was so serious that it would be wrong for the court to ignore it. His award was therefore reduced from £6.5million to £2.36 million.
This case shows that even a valid pre-nuptial agreement will not protect someone who behaves dishonesty or misuses marital funds. Courts can reduce an entitlement if their behaviour is sufficiently serious.
Typical relationship issues, such as arguments or infidelity alone, usually do not effect financial outcome unless they involve misuse of money or other exceptional factors.
What this means for you:
- Keep financial dealings transparent;
- Avoid behaviour that could appear manipulative or dishonest;
- If you suspect misconduct seek specialist legal advice promptly;
- If you have a pre-nup remember it provides guidance but does not override fairness.
How Moore Barlow can help
You would be wise to take specialist advice before pleading conduct in your proceedings as the risk of making weak allegations is likely to raise the costs significantly and may result in an adverse costs award against you. An experienced family solicitor will be able to advise you on whether or not the other spouse’s conduct is likely to affect the outcome and whether this should be raised as a specific issue by you.
Conduct arguments are rarely successful in practice, except in unusual circumstances, such as in the Loh case above.
If you would like to speak to someone about any issues raised in this article, please don’t hesitate a member of the Moore Barlow family team.
