‘Don’t Lose Ur Head’…But It Might Lose You Money: Conduct in the No-Fault Divorce Era
min read"Divorced, beheaded, died; divorced, beheaded, survived". That is the well-known rhyme about the fates of the six wives of King Henry VIII, which has been cleverly weaved into the lyrics of the opening number of SIX the Musical. The show reimagines King Henry VIII’s six wives as pop stars competing to determine whose marriage to Henry was the most catastrophic. Whilst it is no surprise that their stories of divorce, annulment and beheading make for compelling theatre, they also provide an apt lens through which to examine the regime of no-fault divorce and the relevance of a spouse’s conduct in financial remedy proceedings in England and Wales.
The End of Blame: No-Fault Divorce
Since 6 April 2022, the Divorce, Dissolution and Separation Act 2020 has removed the requirement to establish fault when petitioning for divorce in England and Wales. There is no longer any need to allege adultery, unreasonable behaviour, or desertion, nor to endure lengthy separation periods before a divorce can be obtained. Either party can now simply state that the marriage has irretrievably broken down. It is no longer necessary to draft ‘particulars of behaviour’, which were adversarial documents setting out details of the other party’s behaviour which justified a divorce (on the grounds of unreasonable behaviour).
Had the wives of Henry VIII been divorcing today, they would not need to detail his increasingly erratic behaviour to obtain their final orders of divorce. A simple statement of irretrievable breakdown would suffice. Catherine of Aragon would not need to plead his adultery with Anne Boleyn; Anne of Cleves would not need to establish his unreasonable behaviour. The process is now much more straightforward.
Conduct in Financial Remedy Proceedings: Section 25(2)(g) Lives On
The removal of fault from the divorce process does not mean that the parties’ conduct during the marriage or during proceedings cannot be argued to be relevant to the financial outcome of the case. When the court determines a financial remedy application (in connection with a divorce), section 25(2)(g) of the Matrimonial Causes Act 1973 remains firmly in place. The court must 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 threshold, however, is exceptionally high. The classic formulation from the case Wachtel v Wachtel [1973] requires that conduct be “obvious and gross” before it can properly influence the division of assets. More recently, in OG v AG [2020] EWFC 52, the court confirmed that this bar remains deliberately and appropriately high. Day-to-day marital misconduct such as unkindness, infidelities, and disappointments that characterise many failing marriages will rarely, if ever, cross the threshold.
In practice, modern cases engaging section 25(2)(g) typically involve serious criminal conduct, the deliberate dissipation of assets, or litigation misconduct of a significant nature. A spouse who empties the joint account and flees the jurisdiction may find their conduct relevant. A spouse who was merely difficult to live with will not.
Whether conduct will be relevant depends on the specific facts of the case, and examples of personal misconduct during a marriage meeting the threshold are few and far between.
- In DP v EP (Conduct: economic abuse: needs) [2023] EWFC 6, the court referred to the need for a “gasp factor” in the context of economic abuse, and the features that took the case “out of the ordinary” included the husband’s illiteracy and the wife’s exploitation of that vulnerability, and the wife’s decision to deliberately deceive him over a considerable time period.
- LP v MP [2025] EWFC 473 was an extraordinary and extreme case, involving serious deception by the wife. She played on the husband’s vulnerability when they met and lied from the outset, saying she was on a fast track to become a High Court Judge, that she was friends with Supreme Court Judges and key political figures and that to progress her career she needed to be married before the start of the new legal year. She also subjected her husband to coercive and controlling behaviour, verbal and emotional abuse, and serious physical abuse and made threats to kill him, including in front of their daughter. The Court considered that the wife’s behaviour passed the “gross and obvious test”, and reduced her sharing claim significantly.
- Loh v Loh-Gronager [2025] EWFC 483 was a case involving “deplorable” conduct by the husband during the marriage and in the proceedings. He withdrew significant sums from joint funds for his own investments without the wife’s consent during the marriage. During the proceedings, he fabricated evidence and made deliberate attempts to intimidate and distress his wife, such as by doctoring emails, posting personal and intimate photographs of his wife online, and employing a private investigator to loiter outside the wife’s home on her birthday pretending to be press. The Court considered the husband’s behaviour to be so deplorable it met the threshold.
In previous cases, the Court took a restrictive approach to conduct, noting that for conduct to have a bearing on the division of assets, there must be financial consequences resulting from that conduct. However, in both the recent cases LP v MP and Loh v Loh-Gronager, the Judge warned that the previous approach risked unfairness to victims of violent or coercive and controlling behaviour, where there may be a lack of readily quantifiable financial loss. It remains to be seen in which direction this area of law will develop.
No-fault divorce has rightly removed blame from the process of ending a marriage. But it has not created a world in which conduct is completely irrelevant to financial outcomes. The two regimes operate independently: the divorce application itself is now simple, whilst the analysis of the division of assets may account for truly egregious behaviour.
