Ashley Murray
The current tension of interpretation over the test of ‘conduct’ in divorce financial remedy following two recent Judgments (LP v MP (2025) EWFC 473: https://financialremediesjournal.com/lp-v-mp-2025-ewfc-473-2/ and Loh v Loh-Granager (2025) EWFC 483: https://financialremediesjournal.com/wei-lyn-loh-v-ardal-loh-gronager-2025-ewfc-483/) by Cusworth J exposes the absolute necessity for urgent statutory reform.
The phraseology in the 1973 Matrimonial Causes Act 1975 has always been open to the wider interpretation now canvassed in these two decisions. It is wholly disingenuous to suggest that suddenly after 53 years certain High Court judicial luminaries have occasioned upon a new liberal explanation of the statutory wording permitting ‘conduct inequitable to disregard’ (s 25 (2)(g)) in financial remedy cases to be moulded like plasticine to any reprehensible behaviour irrespective of its financial connection.
Whilst we can all agree on total support for abused spouses, including by use of divorce ‘conduct’ and the resulting financial settlements – these judgments do not reflect the right way. It will not benefit any divorcee if we have complete guesswork in the judicial approach to when conduct is to be factored into the outcome and when it is not.
The current split engineered by Cusworth J in approach creates real confusion at the ‘coalface’ of advising all divorcees as to the likely reasonable outcome of an already ridiculously expensive divorce process and, arguably, His Lordship’s approach on the case facts before him could have been achieved otherwise.
The divorce process is not just about finding a fair and reasonable outcome, including in costs for abused spouses, but for ALL divorcees, especially as the present system, because of delay and expense, serves only the c40 % (recent Law Commissions’ published scoping report on Financial Remedies (Dec 2024) https://lawcom.gov.uk/publication/financial-remedies-scoping-report-and-summary/) of divorcees who access it and is, therefore, already failing the majority. The present further confusion created in the wake of these judgments can only exacerbate this situation and this cannot continue.
Only Parliament should have the authority to take the law down this avenue – the alternative is a return to the legal chaos of the law being dependant upon ‘the length of the judge’s foot’.
Judges are not legislators – a point Nicholas Mostyn himself argued forcibly in the wake of the decision of the House of Lords in White (2000): (https://publications.parliament.uk/pa/ld199900/ldjudgmt/jd001026/white-1.htm.) Again, the departure of Cusworth J from an approach advocated on ‘conduct’ for over half a century has demonstrated a departure from the long-established judicial approach to hold the well established policy line.
Yes, of course, the present wide discretionary system of ‘fairness’ under the s 25 statutory test can always take on yet another development in what may be termed the continuing ‘awareness’ of society journey – but there is a tipping point where such a journey with a 53 year old statute pleases the legal purists, but fails those for whom it is supposed to exist.
There is no point in a financial remedy law providing to the legal mind the perfectly tuned divorce outcome – if the cost and risk of getting there for most divorcees is unacceptable. Just look, for example, at the huge legal costs involved in the Cusworth J cases.
The discretionary system may be good for lawyers and provide lively debate between legal academics – but have we as lawyers the right to continue to advocate a system of determination which now only 4 in 10 divorcees actually use. Such an approach yet again in £multi-million divorces has little relevance to the hapless client in the other 99.9% of ordinary cases.
Divorce is a highly personal and painful experience, which uncertainty in the legal principles to be applied in its process can only exacerbate in terms of delayed outcome and costs. What divorce should not be is a high intellectual game played out by the higher court judges who risk none of their own financial resources in the exercise.
Financial Remedy law has become ridiculously complicated and Cusworth J has now added yet another layer. Yes, the present Financial Remedies divorce model could continue to adapt to society changes well into the future – but would anyone but oligarchs then be using it. Statutory reform has been persistently canvassed over the last decade with successive governments delaying and avoiding the issue.
Family judges, lawyers and academics do not have an exclusive right to determine the shape of divorce financial remedies. Instead, those who have to pay for and experience its consequences have a much greater right to be engaged. It is, therefore, remarkable and depressing that there was no effective public consultation undertaken in the most recent Law Commission’s reports exploring these very issues. The public deserve much more from their legal system.
This article represents the personal views of the author, Ashley Murray, and does not necessarily reflect the views of Chronicle Law.