In the 27 February edition of the Law Society Gazette, Neil Graham authored an article considering whether the bar for ‘misconduct’ in family law proceedings has been set too high.
The article examines how English family courts apply section 25(2)(g) of the Matrimonial Causes Act 1973, determining the extent to which a party’s conduct can influence financial outcomes.
What qualifies as misconduct in family law proceedings?
Historically, the courts have set a very high threshold, described as “obvious and gross” conduct. Caselaw now categorises conduct that may be relevant into four types: serious personal misconduct, economic misconduct leading to “add‑back” arguments, litigation misconduct leading to arguments over costs, and failure to give full financial disclosure which may affect computation.
In practice, only the most extreme personal misconduct has met the threshold. Examples over the years have included attempted murder, severe violence and grave sexual misconduct. Adultery or a “negative” contribution to the marriage does not qualify, as confirmed in Miller v Miller and Finch v Baker.
Recent judgments have further clarified the bar. In Tsvetkov v Khayrova [2023], Mr Justice Peel held that conduct must be proven, must meet the high threshold and must usually have a demonstrable financial impact linked to the wrongdoing. In N v J [2024], he then emphasised that most cases can be decided without examining conduct, and inquiries must be proportionate.
The ruling in LP v MP [2025] recognised the risk of unfairness to victims of coercive or violent behaviour when financial loss is hard to quantify, though the threshold remains high; and in Loh v Loh‑Gronager [2025] the court signalled the possibility of a broader approach in cases involving the implementation of a pre‑nuptial agreement.
Neil’s article concludes by highlighting growing concern about economic abuse, citing a 2024 Resolution study that suggested the current statutory law may insufficiently address long‑term financial harm as a result of domestic abuse.
The same study considers the possibility of a new practice direction which “would provide clarification for practitioners and litigants as to what forms of domestic abuse would be regarded as crossing the statutory threshold for conduct to be taken into account in financial proceedings,” Neil summarises.
G&G Law in the media
Neil and partner Natasha Grande have written extensively on the most significant issues in family law since founding G&G Law in 2025.
Natasha spoke to the Daily Express’ personal finance section about how pensions are overlooked during the divorce process. Neil provided commentary for Spear’s about the truth behind Divorce Day, the theory that the first working Monday in January is a peak period for contacting divorce solicitors. Natasha has also been published in This Is Money, answering a reader question about a married couple whose house was in the name of just one spouse.
