Bad Behaviour on Divorce: When Conduct Actually Affects the Money
.jpeg)
Bad Behaviour on Divorce: When Conduct Actually Affects the Money
Clients often arrive brimming with stories of “bad behaviour” and assume it will transform the financial outcome. The hard truth? Conduct rarely changes the award. Section 25 of the Matrimonial Causes Act 1973 tells the court to consider conduct only if it would be inequitable to disregard it. That is a high bar. This guide explains when conduct genuinely matters, how the courts treat both financial and non-financial misconduct, and how litigation behaviour and costs can still bite you in the wallet.
The Legal Frame: Section 25 MCA 1973
When dividing finances, the court must consider the section 25 factors. These include the parties’ resources, needs, ages, contributions, and, at section 25(2)(g), “the conduct of each of the parties, if that conduct is such that it would be inequitable to disregard it.” The statute offers no more detail. So, we look to case law for the working rules.
Key takeaways:
- Conduct is an exception, not the rule.
- The question is not whether someone behaved badly in a moral sense, but whether ignoring that behaviour would make the outcome unfair.
- Even where conduct is proved, the court still aims to meet needs and achieve overall fairness.
Financial Conduct: Dissipation and the “Add Back” Tool
The principle
If one party has dissipated marital assets, the court can reflect that when dividing what is left. As Cairns LJ put it in Martin v Martin [1976] Fam 335, a spouse cannot fritter away assets through extravagant living or reckless speculation and still expect the same share.
The mechanism: “Add back”
Courts sometimes add back spent funds to the overspender’s side of the balance sheet, treating them as if still available to that party. The expression comes from Norris v Norris [2002] EWHC 2996, where £250,000 of overspend was added back to the husband’s assets. The logic is simple: why should the other party be disadvantaged by reckless expenditure?
But caution is required. In Vaughan v Vaughan [2007] EWCA Civ 1085, where the husband gambled away wealth, the Court of Appeal confirmed you need clear evidence of dissipation with a wanton element before adding back money that no longer exists. Wilson LJ stressed that add back should not morph into a fiction that the party can actually spend those “attributed” sums to meet needs.
The wanton element
Not all spending you dislike counts as dissipation. In F v F [2012] EWHC 438 (Fam), substantial lifetime gifts to adult children were held reasonable in the family’s context and did not amount to wanton depletion. By contrast, where the facts show reckless spending aimed at reducing the other party’s claim, add back is more likely.
Morally bad is not always legally “wanton”
In MAP v MFP [2015] EWHC 627 (Fam), very heavy spending on drugs and sex work was found morally culpable and irresponsible, but the judge held it was not a deliberate or wanton attempt to defeat the wife’s claim. The husband’s flaws were treated as part of the human package, not a legal device to skew the outcome.
Pleading and Proving Financial Misconduct
If you are running a conduct case, plead it early, plead it clearly, and prove it. In Tsvetkov v Khayrova [2023] EWFC 130, the court emphasised that conduct allegations must be properly particularised at the first opportunity: what exactly is alleged, how it meets the inequitable-to-disregard threshold, and what financial impact it caused.
Practical steps:
- Flag conduct in Form E at section 4.4, even if details await disclosure.
- Gather evidence: bank statements, card statements, loan documents, ledgers, and any supporting communications.
- In complex cases, consider a forensic accountant for tracing.
Needs Still Matter: The Limit on Add Back
Even when an amount is added back, the court does not treat that sum as cash available to meet the overspender’s needs. As Wilson LJ explained in Vaughan, add back is an attribution for fairness at division, not a magic pot for housing or living costs. If needs are tight, the court may still have to prioritise housing and income needs, even for the overspender.
One notable carve-out is legal costs overspend. Recent cases show a tougher stance on parties who burn through fees unreasonably. See below.
Non-Financial Conduct: Rare but Real
Non-financial misconduct is invoked far less often, but in extreme cases it can move the dial.
- H v H [2005] EWHC 2911: The husband’s attempted murder of the wife placed the case at the top of the scale. The court treated conduct as a magnifying factor for the wife’s needs and prioritised her position.
- FRB v DCA (No 2) [2020] EWHC 754 (Fam): The wife allowed the husband to believe he was a child’s natural father when he was not. The court found conduct so egregious that it would be inequitable to ignore, but struggled to translate emotional harm into a financial figure. Ultimately, the husband’s poor disclosure meant the court avoided a crude discount to the wife that would create double jeopardy.
- VV v VV [2022] EWFC 41: The wife interfered with the husband’s employment units by contacting his employer’s founder. That gross conduct was taken into account and influenced the assessment of her needs.
Bottom line: Only truly exceptional non-financial conduct tends to alter the award, and even then the court focuses on needs and fairness, not punishment.
Litigation Misconduct: Costs and Sometimes More
While the general rule in financial remedies is no order as to costs (FPR r 28.3(5)), the court can depart from that where a party’s conduct in the proceedings warrants it (r 28.3(6) and (7)). Examples include ignoring court orders, pursuing hopeless points, or failing to engage constructively.
- HD v WB [2023] EWFC 2: Costs consequences for unreasonably pressing a bad case about a prenuptial agreement.
- DP v EP [2023] EWFC 6: The wife’s dishonest presentation led to both an unequal division and an adverse costs order.
- R v B [2017] EWFC 33: Moor J made clear that very serious misconduct can justify prioritising the innocent party’s needs even if it means the other party’s needs are not fully met.
- TT v CDS [2020] EWCA Civ 1215: The Court of Appeal confirmed it is not unfair for the party guilty of misconduct to end up with less than needs might otherwise demand.
Failure to negotiate reasonably
To curb runaway costs, Practice Direction 28A paragraph 4.4 was revised in 2019. Refusing to negotiate openly and reasonably generally counts as conduct that may attract costs penalties.
- MB v EB (No 2) [2019] EWHC 3676: After 2 years of litigation and about £1.25m in costs, the husband’s failure to make or engage with sensible open offers drew criticism and costs consequences.
- LM v DM (Costs Ruling) [2021] EWFC 28: Even on interim applications, Mostyn J applied the same principle. The successful applicant was deprived of half her costs because she had not negotiated openly and reasonably. His warning was crisp: parties who do not negotiate reasonably will face cost penalties.
Excessive Legal Costs: The New Robust Approach
Two 2022 decisions tackled the unfairness that arises when one party spends vastly more on lawyers than the other.
- YC v ZC [2022] EWFC 137 and P v P [2022] EWFC 158 show the court may adjust the asset schedule before division to neutralise unfair overspend. This can involve excluding a portion of unpaid costs or adding back a portion of costs already paid, effectively penalising the overspender.
- HHJ Hess indicated that, in the right case, a party can expect an award that meets needs at a lower level than otherwise justified because they chose to overspend on costs.
- DDJ Hodson analysed excessive costs as an advance on account of that party’s entitlement, distinct from classic add-back doctrine which requires wanton dissipation.
Message for litigants: You cannot assume fees will be “lost in the wash.” Spend proportionately or risk a financial correction.
Running a Conduct Case: Strategy and Evidence
- Threshold first. Ask whether the conduct would be inequitable to disregard. If not, save your ammunition for needs, sharing, and contributions.
- Particularise early. Set out allegations clearly, connect them to the legal threshold, and explain the financial impact you say they caused.
- Prove it. Bank statements, transaction histories, medical or criminal records where relevant, employer correspondence, and expert reports where needed.
- Cost-benefit check. Conduct fights can be expensive. Be realistic about proportionality and likely benefit.
- Don’t forget needs. Even if conduct is made out, housing and income needs still dominate outcomes for most families.
Practical Tips To Protect Your Position
- Audit early. Build your asset and liability schedule and cross-check totals independently.
- Use Form E properly. Complete section 4.4 if conduct will be relied on, and exchange full supporting documents.
- Make sensible open offers. From an early stage, put forward reasonable open proposals and keep them updated as disclosure evolves.
- Control legal spend. Track budgets, consider ADR, and avoid point-scoring. The court is watching costs.
- Consider expert help. For possible dissipation, a forensic accountant can save time and prove value.
FAQs
Does adultery affect the division of assets?
Not usually. Adultery is rarely relevant to finances unless tied to exceptional financial or non-financial conduct that meets the inequitable-to-disregard threshold.
Can I get money back if my ex wasted assets?
Possibly. If you can prove wanton dissipation, the court may add back sums to your ex’s side of the ledger, though needs may still temper the final effect.
We both spent too much on lawyers. Does it matter?
Yes. Courts can now adjust outcomes for excessive and disproportionate costs, especially where one party’s spend dwarfs the other’s without justification.
Will conduct reduce maintenance?
It can, but only in unusual cases. Maintenance is driven by needs, resources, and fairness. Litigation misconduct is more likely to show up as a costs penalty than a maintenance cut.
The Bottom Line
Conduct can change the numbers, but only where it would be inequitable to ignore it. Financial dissipation may trigger add back if there is clear, wanton waste. Non-financial misconduct must be truly exceptional to shift the dial. Meanwhile, how you litigate now matters a great deal. Refusing to negotiate reasonably or running up excessive costs can and will be reflected in the final award.
If you think conduct may be relevant in your case, get tailored advice early. The right strategy, evidence plan, and negotiation posture can protect your position and keep costs under control.
Related Articles:
Protect Your Future: Why a Pre-nup or Post-nup Could Be One of the Smartest Legal Steps You Take
Pre-Nups vs Post-Nups: What’s the Difference — and Why You Might Need One
