Families and divorce

Legal challenges: Domestic abuse in financial cases

Written by Caitriona Rafferty on 23rd December 2024 | 8 minute read

Despite a nationwide movement to recognise the behaviour that amounts to domestic abuse and the impact of such abuse on victims, there remains a reluctance from the family courts to consider domestic abuse when assessing how to settle matrimonial finances. In November 2024, The University of Bristol released their supplementary report on domestic abuse in financial remedy cases, further to the Fair Shares report published in November 2023.

“Whilst we continue to ignore the elephant in the room, we fail to protect some of the most vulnerable litigants in the family justice system” – a powerful statement from Grant Cameron, Chair of Resolution, when introducing the Resolution Report on domestic abuse in financial remedy proceedings.

How domestic abuse is currently considered in financial remedy cases:

As with any other form of conduct, statute (section 25 of the Matrimonial Causes Act 1973 (MCA 1973)) and case law dictates that domestic abuse will only be a factor for consideration in financial remedy proceedings insofar as the court would find it inequitable to disregard it.

In practice, this means that in most cases, the court will only consider conduct/domestic abuse where there have been financial consequences because of the behaviour in question. Conduct is, according to statute and case law, only to be considered if it is highly exceptional, as illustrated by the following cases:

In the case of H v H [2005], which is now nearly 20 years old, the husband was imprisoned for 12 years after being convicted of attempted murder after he violently assaulted his wife in front of their children. The court in the financial remedy proceedings awarded the wife the majority of the matrimonial assets on the basis that the abuse was to such a level that it would be inequitable to disregard.

In DP v EP [2023] the wife had bought and sold assets, deliberately concealing her actions from the husband who was illiterate and trusted her to manage his financial affairs. The wife's conduct had financially measurable consequences which were reflected in the award, namely the financial order provided for the husband to receive the equivalent of 53% of the matrimonial assets and the wife was ordered to pay 75% of the husband’s legal costs.

Just this year, the Court in the case of N v J [2024] provided clarity on how family law practitioners are to approach conduct and domestic abuse within financial remedy proceedings. The Court emphasised that while section 25(2)(g) of the MCA 1973 does not require there to be a financial consequence to conduct, it is apparent in virtually all reported cases in which conduct has been pleaded.

Whilst the introduction of The Domestic Abuse Act 2021 widened the definition of domestic abuse, these provisions do not amend or supplement the statutory definition of conduct in financial remedy proceedings as interpreted by case law.

University of Bristol Fair Shares Project & Domestic Abuse Report November 2024

The University of Bristol’s report on domestic abuse in financial remedy cases explored this matter at great length, identifying several links between domestic abuse and less favourable financial settlements for victims. Including a finding that female survivors on average were entering a divorce in a more precarious financial position than other women. As a result, many were potentially less capable of supporting themselves financially after divorce and less able to afford legal representation, ultimately making them more susceptible to post-separation domestic abuse and manipulation by their ex-spouse.

Further, both female and male survivors were often motivated by having a clean financial break from their ex-spouse and by having no ongoing contact with them. The findings demonstrate that survivors of domestic abuse exiting marriage, often face a range of financial disadvantages. Up to five years after their divorce, female survivors were less likely to be in paid work (particularly full-time work), and more likely to be on Universal Credit and to have a lower household income.

The findings also show that only 16 per cent of female survivors and 19 per cent of male survivors received legal aid, whilst 50 per cent of female survivors and 51 per cent of male survivors paid for legal or mediation costs themselves. Therefore, many survivors of domestic abuse are funding their own cases, and doubt is cast as to whether all eligible recipients are receiving the legal aid to which they are entitled.

Resolution recommendations

Resolution makes a number of recommendations following the University of Bristol report calling for a cultural shift within the family law profession to meet the needs of victims of domestic abuse within financial remedy proceedings.

The full report detailing Resolutions recommendations can be found here - *Layout 1 (resolution.org.uk)

In summary, Resolution’s recommendations include:

Tackling non-disclosure at the outset by better utilising the court’s case management powers.
Clarity in Pre-Action Protocol that domestic violence is a valid exemption from Non-Court Dispute and that survivors will not be faced with the prospect of costs orders being made against them.
Supporting a cultural shift (once proceedings have commenced).
Clarity on and widening access to interim maintenance payments and applications.
Capital and income threshold for Legal Aid should be significantly increased.
Consequences of non-compliance should be determined as part of a final order.
Costs orders should be made both to deter a party from using court proceedings as a way of perpetrating abuse.
Introducing a Practice Direction to assist family justice professionals dealing with issues of domestic abuse.

In an encouraging development, the government recently announced the Early Legal Advice Pilot project (ELAP) designed to assist ‘participating families in resolving their disputes’ and to collect evidence on the role of legal advice in dispute resolution.

Although no comment or action has been taken by government and law makers since the issue of these reports, it is hoped Resolution’s comprehensive recommendations will mark the beginning of change going forward. However, as with any significant amendments in the law, we believe it may be some time before we see positive change.

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