Bad Romance: conduct and prenups

On my first day in this job, more than just a few years ago now, I was told of a family law mantra, a principle which has guided practitioners through the thorny brambles of matrimonial disputes ever since the first man was kicked out of his cave by his wife and told to go sleep with the mammoths. 

“Shits never win”

Whilst I cannot say with absolute certainty that this was in the minds of the legislators when they put pen to paper on Section 25(2)(g) of the Matrimonial Causes Act 1973 (which provides that in financial remedies proceedings, 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”), the gist is pretty much the same. The language is perhaps a touch grandiloquent.

However, we know this is a high bar: forgetting anniversaries, not emptying the dishwasher and leaving the toilet seat up just won’t cut it, and the court will only take into consideration the most serious incidents of conduct when determining financial applications. 

This can lead to difficult conversations with clients who, perfectly understandably, believe and expect that certain behaviours must lead to financial penalties. But there are sound practical, public policy reasons why this is not the case. How would one quantify, for example, the monetary cost of an affair? 

For as long as conduct remains on the statute books, however, these arguments can run, and in the right circumstances, successfully so. 

The recent case of Loh v Loh-Gronager [2025] EWFC 483 stands as evidence of this and, in particular, conduct in financial proceedings where the enforceability and implementation of nuptial agreements is also in play.  These cases are likely to become more common as the growth of nuptial agreements continues, with no sign of abating.

The husband was well-placed: a young mid 30s former banker, he had married into extreme family wealth with a generous pre-nuptial agreement (signed in March 2019 before a wedding in October 2019) which, after only four years of marriage, entitled him to walk away with a very handsome sum of around £6.5m. 

But through his “deplorable” conduct, he blew it. 

Mr Justice Cusworth reduced the husband’s entitlement to £2.37m with a warning that on the issue of costs, “there is a real prospect that a very substantial order may be made against him”. 

The husband’s entitlement under the agreement had been accepted and agreed. 

The issue to be determined, however, was whether funds the husband had taken from the parties’ joint account and a mortgage account in the wife’s sole name under a power of attorney were consensual gifts from the wife. If so, these funds would form part of the husband’s Separate Property to be retained by him in addition to his entitlement. This was the husband’s case. If, however, the husband had been acting in bad faith as was the wife’s case, and the money had been taken without her blessing, the funds should be considered as payments on account of his entitlement, and the sum of £6.5m reduced accordingly. 

In finding in the wife’s favour, and unequivocally so, the Judge considered the following incidents of conduct which together “comfortably crosses the threshold for the application of s25(2)(g)”: 

1. The husband falsified emails which purported to show the wife having consented to the transfer of funds into his sole account. He showed himself to be a decidedly incompetent fraudster: the emails were sent to his solicitors as PDFs; he argued the originals had been deleted either on the advice of his therapist (which was not corroborated by the therapist) and then on advice from family and friends; when asked to identify the device on which the emails were produced, he “did not know, that it might have been a laptop which was subsequently stolen, or friends’ or parents’ devices, or devices found in hotels or internet cafes. In any event, no such device has been made available for inspection”.
2. Shortly before a Private FDR hearing, the husband opened a private Instagram account and, unbeknown to the wife, posted on there a significant number of personal photographs of her. He also set up a separate website for the same purpose. He declined to provide the wife or her lawyers with access to the website or Instagram account until directed to do so.
3. The husband instructed a private detective (described as “lacklustre” by the Judge) to loiter outside the wife’s home on her birthday and pose as a member of the press. 

The Judge’s assessment of the husband was damning: “There is no doubt that the husband’s behaviour throughout the marriage and during these proceedings has been deplorable on any view”; “This is the most serious level of litigation misconduct that may be seen in these courts”; “ … he has throughout the marriage been preparing the ground for as lucrative a separation as he could contrive”.

There is interesting commentary in the judgment about the inter-play between the statutory conduct test and well-known paragraph 75 of the leading nuptial agreement authority Radmacher v Granatino [2010] UKSC 42 which reads as follows:

“The court should give effect to a nuptial agreement that is freely entered into by each party with a full appreciation of its implications unless in the circumstances prevailing it would not be fair to hold the parties to their agreement.”

Mr Justice Cusworth makes two points: firstly that there is no difference between the tests of “inequitable” and “unfair” such that they should be considered together; and secondly that whilst only the most serious incidents of conduct are taking into account in the application of the statutory test under s25(2)(g), the Radmacher test of fairness is not so constrained, and readily applied when considering the implementation of a nuptial agreement. 

The relevant paragraphs are here:

59.  Considering the question of conduct, I should say first that the above determinations of outcome in relation to the other payments have not required the application of s.25(2)(g) , and merely follow naturally in light of my findings. The test, as set out in the statute at that sub-paragraph, is of course that a party's conduct should be considered if it is such that, 'in the opinion of the court, it would be inequitable to disregard it'. In this context, inequitable can mean no more or less than 'unfair' or perhaps 'unjust', and fairness is of course also the key element of the test at paragraph 75 of Radmacher set out above. This drives me to conclude that there should be no real difference between the two tests, and that they should in effect be considered together. I accept that one goes primarily to the fair implementation of the agreement, the other to broader fairness, perhaps once the impact of the PNA has been considered.

60.  I also acknowledge that the higher courts have sought for policy reasons to limit to only the most serious instances those occasions when first instance judges will alter the outcome of a financial remedy application by the application of s.25(2)(g) . However, when the implementation of a nuptial agreement has been in issue the application of the principle of fairness has not noticeably been so constrained. In this case, however, I am satisfied that the husband's behaviour, as I have found it to have been, comfortably crosses the threshold for the application of s.25(2)(g) . I need not therefore go on to consider any possible tension between the application of the tests in these different areas.

As can be seen at paragraph 60, it was not necessary for the Judge to wrestle with this tension because the husband’s conduct met the statutory test with room to spare. 

This raises the intriguing question of whether conduct is more readily accepted in cases concerning nuptial agreements than those without, and the correctness or otherwise of an inconsistent judicial approach to tests which on this reasoning, mean one and the same.

So if you want to protect your wealth and make sure your husband leaving his socks on the bathroom floor is taken into account in your financial award, perhaps you best think about that prenup …