Domestic abuse in the context of Financial Remedy Proceedings
The family court is clear that domestic abuse is indefensible. There is however a clear difficulty in survivors being able to successfully raise domestic abuse in the context of financial remedy proceedings.
Court’s approach
In determining how assets will be distributed, the court considers several factors set out in Section 25 of the Matrimonial Causes Act 1973. S.25(2)(g) provides that the court will 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”. Domestic abuse is conduct which can be taken into account in financial remedy proceedings.
In respect of economic abuse, in OG v AG [2020] Mostyn J explained that “If one party economically oppresses the other for selfish or malicious reasons then, provided the high standard of 'inequitable to disregard' is met, it may be reflected in the substantive award.”
The difficulty that parties face when seeking to raise this argument, is that the threshold is extremely high. It is not sufficient for the court to only determine that there has been domestic abuse but that such abuse will have or has caused a financial consequence on the case. It is often difficult to establish such a causative link given any consequence of the abuse may not be known for several years and in many cases after proceedings have concluded.
Conduct has recently been considered in the High Court. Peel J clarified that in order for domestic abuse to be a relevant consideration within financial remedy proceedings, the conduct must be:
- at a high or exceptional level and
- have an identifiable (even if not always easily measurable) negative financial impact caused by the other party’s behaviour.
The position was confirmed in the recent case of N v J [2024]. This case involved male civil partners who had cohabited for 14 - 17 years (this was an issue in dispute). The issue of conduct here related to N’s allegations that J lied about his cheating and infidelity during the relationship (J later admitted to this in 2021), which N says resulted in him requiring mental health treatment, including hospitalisation, rehabilitation, medication , and electroconvulsive therapy, based upon the false assumption that he was paranoid, delusional and psychotic. Personal misconduct was said to need to be of “a high degree of exceptionality to be capable of consideration under the Act”. Mr Justice Peel concluded that;
- the conduct did not meet the required threshold of exceptionality
- it was difficult to conclude that J’s actions caused N’s health to decline
- there are a rare band of cases where conduct will be taken into account in the financial distribution
- N was pleading increased medical costs and health was a factor to be considered under Section 25 MCA 1973 in any event .
- the conduct issue did not add anything further to his case, over and above the usual considerations of the sharing principle and needs.
In summary, it was concluded that the financial distribution could be fairly achieved by reference to all the other s25 criteria (and their equivalent under the Civil Partnership Act) without any need to take account of the conduct allegations, and conduct (even if found) would make no material difference to outcome.
In DP v EP (conduct: economic abuse: needs) [2023] it was acknowledged that the threshold is very high and that, “undoubtedly not all cases involving economic abuse will have the “gasp factor” required by MCA 1973, s25(g).”
The bar therefore remains exceptionally high and has not changed despite the increased focus on domestic abuse across the legal profession. The decision also illustrates the need for conduct to be ‘material’ to the outcome of a case. This makes it increasingly difficult where survivors are subject to economic abuse but cannot illustrate a direct causative link or detriment in the context of financial proceedings.
It appears more likely that the court will aim to achieve overall fairness in the case through consideration of the other statutory criteria such as resources, needs, length of the marriage, standard of living, contributions, age of the parties and relevant health considerations. Mr Justice Peel emphasised that it is not the role of the family court to apportion moral blame or impose fines, penalties or damages when making decisions on matrimonial finances.
Resolution report
Resolution, a community of family law professionals committed to resolving family law disputes in a non-confrontational manner, recently published a report which explores the intricate connection between domestic abuse and financial disputes during separation and divorce.
The report clearly addresses survivors’ experience of post-separation abuse in the family court system. The report identified the patterns of behaviour which perpetrators use to prolong their abuse such as failing to provide full and frank disclosure, non-compliance with court orders, deliberate delaying tactics such as refusing to engage with lenders or failure to complete necessary steps to sell the family home. These behaviours illustrate how perpetrators often use the financial remedy process to maintain and prolong such control over survivors. This is an ongoing and real concern that practitioners need to be aware of and ready to deal with.
The report identifies the main issue with the current system: the bar is set exceptionally high. As set out above, survivors need to show clear a causative link between domestic abuse and adverse financial consequences. This is incredibly difficult given such consequences may not always be easily measurable or indeed it may be difficult to assess the full financial impact at the time of the hearing.
The Resolution report provides recommendations which they hope will form a basis in any policy reform in this area of law. Resolution has confirmed it will review this area of law in two – five years’ time to comment on whether there have been any substantive changes for survivors relying on this process.
What next?
A report published by the University of Bristol in November 2024 found that “domestic abuse survivors were… more likely than other divorcing women to use contested court proceedings, therefore highlighting the vital role of court orders and formal legal processes in such situations.”
The court has made its current stance on the interplay between domestic abuse and financial remedy proceedings clear: it is unlikely that such abuse would have any material impact on the vast majority of financial remedy cases.
It would appear that there is a need for legal reform that would ensure that financial consequences of domestic abuse are properly recognised, and do not leave survivors at a systemic disadvantage, whereby the threshold is so high it can prevent serious patterns of coercive or economic abuse from influencing financial outcomes.
There does, however, continue to be a strong focus on family law professionals raising awareness of the difficulties faced by survivors and those representing vulnerable clients are taking steps to protect them on a practical basis. Resolution have called for change, set out recommendations and will review this area again in a few years’ time – it is still at the forefront of discussion.
Similarly, the Law Commission recently launched a review of the laws which determine how finances are divided among parties following separation. The report states that The Matrimonial Causes Act 1973 has not been reviewed by Parliament for fifty years and requires modernisation to keep up to date with societal changes over that time and requires modernising to ensure it reflects the society and family dynamics it represents. Others are of the opinion that the current statute is fit for purpose as it allows the court a great deal of discretion and over the past fifty years there has been vast amounts of case law which has helped practitioners interpret and apply the statute in practice. It may be that domestic abuse in the context of financial remedy proceedings is considered
