Bad behaviour & divorce — does an affair affect the financial settlement?

Originally published on 23 May 2024 and updated on 27 January 2026.

When a relationship breaks down because of an affair, it’s common for people to assume that the law will step in, take sides and treat adultery or other bad behaviour as a decisive factor. In reality, modern divorce law focuses far more on meeting each party’s needs than on examining why the marriage ended.

Here, Debbie Heald and Eddy Davies from our family law team explore how adultery and other forms of misconduct fit into the current divorce framework — and when, if ever, behaviour affects the financial settlement.

Does adultery affect a divorce financial settlement?

Adultery itself doesn’t affect the distribution of assets on divorce. In most cases, the court’s focus in on ensuring that the financial settlement meets the capital and income needs of each party and any children. Courts are very reluctant to interrogate the personal reasons behind the marital breakdown and only the most exceptional cases of misconduct will have any bearing on the award that the court makes. 

What may be relevant, however, is if your partner is cohabiting with a new partner as this may result in a pooling of their financial resources, reducing your partner’s needs. For example, their income needs may reduce if they’re sharing expenses or they may have moved into a new partner’s home which could meet their immediate housing needs. The likely impact will vary from case to case. It’s important to remember that each spouse is still entitled to a fair share of martial assets following a divorce.

So when does conduct matter?

Section 25(2)(g) of the Matrimonial Causes Act 1973 provides that the court will consider conduct — among other factors — when making a financial order during the course of divorce proceedings “if that conduct is such that it would… be inequitable to disregard it”. Despite this, conduct arguments are rarely successful.

Since the introduction of the Matrimonial Causes Act over 50 years ago, guidance in case law has demonstrated that conduct arguments are only considered in exceptional circumstances. In most cases, they won’t influence the financial claims on divorce and the reasons for the breakdown of the marriage — including affairs — are usually treated as character flaws, not financial misconduct.  

The leading case of Miller v Miller; McFarlane v McFarlane (2006) emphasised that conduct should be gross and obvious.

Examples of conduct that has been classified as inequitable to disregard include:

• Brutal physical violence (often with correlating criminal convictions).
• Sexual violence, assault, rape or harassment (again, often with correlating criminal convictions).
• Financial misconduct such as gambling, drug addiction or the use of escort services.

How does the court approach bad behaviour?

Finding conduct inequitable to disregard is only the first hurdle to overcome. It doesn’t automatically follow that the court will depart from the starting point of an equal distribution of the assets. 

The correct approach will largely depend on the weight that the court attaches to other relevant factors (known as ‘Section 25’ factors). Commonly, this approach will ensure that the financial settlement meets both parties’ needs. Each case inevitably turns on the individual facts.

Where assets are limited

In cases where there are insufficient assets to meet both parties’ reasonable needs, the court may prioritise the needs of the spouse who’s been harmed. 

In H v H (Financial Relief: Attempted Murder as Conduct), the judge treated the husband’s conduct as a “magnifying factor”, placing the wife’s needs far above his. A similar approach was taken in S v S (Conduct: Pensions) where the wife received 85% of the capital assets and 66% of the pension assets.

Where assets are sufficient

In cases where there are sufficient assets to meet reasonable needs, the court may consider redistributing assets or ‘adding back’ funds that one party has recklessly dissipated. 

However, even where the level of funds spent is clear, it remains difficult to succeed with a conduct argument. In the case of MAP v MFR (Financial Remedies: Add-Back) (2015), the court refused to add back the matrimonial funds spent by the husband on drugs, designer items and prostitutes. While it was acknowledged that the husband had acted irresponsibly, his conduct hadn’t amounted to the wanton dissipation of assets.

What factors actually affect the divorce settlement?

When determining the appropriate financial settlement, the court considers all the circumstances of the case, giving priority to the needs of any children. 

It also looks at:

• The financial needs, obligations and responsibilities of the couple now and in the foreseeable future.
• The resources available to the couple now and in the foreseeable future.
• The standard of living enjoyed during the marriage.
• The age of the couple and duration of the marriage.
• Any physical or mental disability.
• The contributions (both financial and non-financial) that each party has made to the welfare of the family.
• The conduct of the parties (but only in exceptional cases).
• Any benefit either party will lose as a result of the divorce.

Generally, the court will direct an equal sharing of the matrimonial assets. These typically include the family home and any assets acquired during the relationship. In some cases, however, an equal split may not be appropriate and one person may require a larger share to meet their needs. 

Some individuals may also have non-matrimonial assets such as inheritance or assets acquired prior to the marriage or following separation. While these won’t be shared in the same way as matrimonial assets, they can be made available to meet needs if required.

Conduct is just one factor

While it’s possible for the behaviour of one party to influence the financial outcome on divorce, in practice this is rarely the case. Affairs almost never effect the settlement. Conduct arguments are limited to extreme cases where behaviour is gross, obvious or financially reckless — and even then, needs usually take priority. 

Talk to us 

If you’re facing a divorce and want clarity around how issues like an affair or other behaviour might influence your financial settlement, we can help you to understand your position with confidence. We advise on every aspect of divorce and financial arrangements — from straightforward separations to complex cases involving significant assets, business interests and disputes about needs. 

Our award-winning family law team is recognised by The Times Best Law Firms as among the best in the country. Speak to our specialist divorce and financial settlement solicitors today by calling 0333 004 4488, emailing family@brabners.com or completing our contact form below.

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