It is well understood that domestic abuse can often be an issue in proceedings between parents over arrangements for their children. Indeed, findings of domestic abuse are likely to have a significant bearing upon the outcome of such proceedings.But what of domestic abuse as an issue in financial remedy proceedings?
And here it is important to understand just what domestic abuse can entail.
‘Domestic abuse’ is not limited to violence, or the threat of violence. It also includes controlling or coercive behaviour, and economic abuse, i.e. behaviour that has a substantial adverse effect on the victim’s ability to acquire, use or maintain money or other property, or obtain goods or services.The relationship between domestic abuse and the division of finances on separation and/or divorce/dissolution was recently considered by Resolution, the association of family lawyers.In mid-2023 Resolution convened a multi-disciplinary working party, which commissioned a survey of family law professionals to understand the reported incidence of domestic abuse, and to consider what impact any abuse has on the outcome of financial remedy proceedings.
The results of the survey have now been unveiled in a report published by Resolution.
Findings
The survey found that there is overwhelming professional concern that the long-term impact of domestic abuse is not sufficiently considered in financial proceedings between separating couples and parents.
In respect of married couples and civil partners, 80% of respondents said that domestic abuse is not sufficiently taken into account in financial remedy proceedings. In respect of proceedings between unmarried parents concerning financial provision for their children the figure was even higher, with 85% saying it is not sufficiently taken into account.
The survey also looked specifically at the continuation of such abuse during the financial proceedings, taking the view that efforts by one party to thwart the other’s financial claims are also a form of economic abuse. Here, 42% of respondents reported that between 21% – 60% of their cases involved a party failing to give full disclosure of their means, and 18% reported that between 21% – 40% of their cases involved a party failing to comply with a final court order.
Recommendations
In the light of these findings, Resolution’s view is that the current approach of the courts to the issue of the conduct of the parties, which is one of the matters it must consider when deciding upon a financial settlement on divorce, leads to unfair outcomes for some victim-survivors of domestic abuse.
The report did not set out to achieve a final recommendation about how to resolve that particular issue, but it did highlight a number of options, including:
- Changing court rules to ensure that parties are safeguarded from ongoing domestic abuse, for example by using costs orders against a party who has failed to make full disclosure, either in accordance with a court order or in the process of non-court dispute resolution, such as mediation.
- In cases where there is on-going economic or other abuse, shifting the balance away from the usual encouragement for the parties to engage in non-court dispute resolution.
- Taking steps to protect victims where the other party fails to support them financially after separation (both as a way of forcing them to agree to unfair proposals, and as a means of continuing to perpetrate economic abuse), for example by ensuring that victims are awarded sufficient interim maintenance.
- Ensuring that consequences of any non-compliance with a financial remedy order are decided at the time of the making of the order, especially if enforcement proceedings seem likely.
Experiences of abuse victims
During the process of preparing the report Resolution received descriptions of the experiences of victim-survivors, and they give a revealing picture of just how domestic abuse can be an issue in financial proceedings.
One victim described how she fled the matrimonial home because her husband repeatedly strangled her, threw objects at her, raped, and threatened to kill her. She has been advised that this abuse will not impact the outcome of the case, and says that her husband, who is still in the matrimonial home and has no incentive to settle, has failed to provide full disclosure.
Another victim said: “My ex repeatedly breached orders, lied, and got away with it. It was a game to him, and the court was completely unequipped to protect me from this financial abuse.”
Another stated: “I was pressured by my ex to try mediation. We were in mediation for over a year. My lawyer said there was not enough information about the finances for her to advise me on a settlement, but we made offers. Now I think all of that was a delaying tactic by him because he now says the business (which used to be my business) has gone bust.”
Domestic abuse in financial proceedings is a very real issue. Resolution conclude their report by expressing the hope that it will form the building blocks for ongoing and future policy development in this important area.
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