In financial remedy applications during divorces and dissolutions, couples have to complete a Form E financial statement, providing details of their financial circumstances. One of the sections in the form asks whether there is any conduct by their spouse or civil partner which should be taken into account.
Unusually, the Form E tries to deter people from completing this section; it says:
“Bad behaviour or conduct by the other party will only be taken into account in very exceptional circumstances when deciding how assets should be shared after divorce/dissolution. If you feel it should be taken into account in your case, identify the nature of the behaviour or conduct below”
Despite the Form E clearly saying that it is only taken into account in exceptional cases, pretty much all Forms E completed by litigants in person contain allegations that there ex has been guilty of some kind of conduct. Even where solicitors draft this form, allegations are included, often in cases where there alleged misconduct is highly unlikely to make any difference whatsoever, even if the allegation is true. I suspect that either their clients insist that the allegations are included or the solicitors include them just in case.
The government’s recent proposed changes to family law plan to do more than just introduce significantly enhanced rights for cohabiting couples. It is also being proposed that there be significant changes to the law that applies in financial remedy proceedings involving couples who are divorcing or dissolving civil partnerships.
The planned changes announced by the Secretary of State for Justice and Lord Chancellor, David Lammy would introduce “codification plus” – a statutory basis for various fundamental principles of family law that have been until now been a matter of case law, and legally binding pre-nuptial agreements (to be known as qualifying nuptial agreements).
There is also a possibility that the law will change so that where domestic abuse has taken place, it can affect financial outcomes in divorce and dissolutions, and also in cases involving couples who were cohabiting and who never married or entered into a civil partnership.
At the moment, it is rare for conduct to be taken into account. Among the factors that the court must take into account listed in section 25 Matrimonial Causes Act 1973, there is the following;
(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;
Family law differs from civil and criminal law in that it tends to focus on the future and not on the past. In civil and criminal cases, litigation concentrates on things in the past; contractual breaches, defamation, personal injury, theft, murder etc, and its purpose is to provide redress or punishment. Family law on the other hand looks to the future; who will receive what to not just achieve fairness but also meet their needs, and what should child arrangements be etc.
Therefore the court tends to be reluctant to spent time “rummaging through the jumble of the marriage in the attic”. It very rarely takes past misconduct into account. It has neither the time nor the resources to spend on working out whose fault it is that the parties find themselves in their current circumstances. It doesn’t care if the marriage has broken down because one party was unfaithful or behaved badly.
The court only takes into account conduct that would be inequitable to disregard; often this will be limited to conduct that has some kind of financial relevance, such as:
- Wanton and reckless dissipation of assets that might otherwise have formed part of matrimonial property;
- Litigation misconduct; and
- Failure to give full and frank disclosure of finances.
Domestic abuse is rarely taken into account. In some cases, it would be regarded as very relevant, for example in a case where one spouse has been abusive to the other so that they were unable to work. Clearly domestic abuse would be relevant there.
Abuse does not have to be physical in nature; it can also be psychological, emotional, sexual or financial in nature. While it can be financial, eg controlling a spouses finances or taking out loans or credit cards fraudulently spouse’s name, in many cases where there has been abuse, there is often no obvious link to financial issues.
But in most cases where domestic abuse taken place, it tends to make little difference to the financial outcome.
The government has indicated that it is concerned that the effect of domestic abuse is not being sufficiently taken into account. It comments that:
“Case law has established that the threshold for personal misconduct to be taken into account is very high. The misconduct must be both “obvious and gross” and the court has suggested that the behaviour should provoke a “gasp”, rather than merely a “gulp”.”
There is concern that judges who are used to seeing abuse in cases may have become somewhat inured to it and are merely gulping at serious abuse when they should be gasping. The government also makes the point that this test is not a sensible way to judge the seriousness of any abusive behaviour.
There are also concerns that victims of domestic abuse may be disadvantaged in a system that it is expensive, slow and stressful.
Unlike the cohabitation reforms, where the government has said what it proposes to do and asked for feedback, in relation to domestic abuse and finances, the government has not indicated what it might do to address these issues. I would be surprised if it changes nothing. The legal systems understanding of domestic abuse, how it can take place and what its effect can have changed enormously in the thirty years since I began privatising family law. Back then, it rarely seemed to make any difference outside of domestic abuse injunction applications. In disputes about children, thirty years ago the court would usually make orders that fathers had contact with their children even where they had been abusive to the mother; nowadays, domestic abuse is regarded with enormous seriousness in children cases and the danger of children witnessing abuse towards a parent is more likely to result in the court not ordering that contact takes place. However, in financial remedy cases. It continues to often be ignored, save in the most appalling cases.
Should allegations of domestic abuse be taken into account more than they are now? I confess; I am not sure. Dividing a couple’s assets and income between them can often be a matter of pounds and pence once the hard work involved in finding out what their incomes and assets are. It then comes down to deciding what the appropriate balance is being achieving fairness and meet the needs and their children’s needs. This is not straightforward by any means.
Adding the effect of domestic abuse to it will add an additional layer of complexity and dispute. Peoples against whom abuse allegations are made will be more likely to contest them. The recipient of an offer is never going to accept an offer that is pitched lower than normal because the offeror is alleging that there has been relevant abuse. It will make it harder to negotiate agreements and lead to more cases going to court on a contested basis.
His Honour Judge Edward Hess, Deputy National Lead Judge of the Financial Remedies Court (FRC) and Lead Judge of the London FRC has commented recently about the possible change as follows:
“…most family law judges (who are very familiar with dealing with conduct and domestic abuse arguments on the front line) take the view that lowering the bar on conduct arguments, in particular introducing a financial penalty for proven domestic abuse allegations in financial remedies cases, would lead to a very significant increase in the length of individual cases and the non-settlement of cases with a commensurate increase in FRC sitting day requirements. Again, there may be non-monetised social and welfare benefits resulting from such a change – that is a political judgment for politicians to make – but there can be little doubt that this would come at a considerable cost in terms of FRC sitting day requirements.”
A greater focus on domestic abuse in financial remedy claims may lead to an increased risk of parties being unable to see the wood for the trees.
11 July 2026
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