Domestic abuse in financial proceedings: A call from Resolution for a cultural shift

Resolution’s long-awaited report on the interplay between domestic abuse and financial proceedings was published earlier this month. It is a powerful and timely call from family justice professionals to better meet the needs of victim-survivors who feel they have been repeatedly let down by the court system. 

The report highlights a systemic concern that the way in which financial remedy judges view domestic abuse (and the impact, if any, it should have upon a financial award) does not adequately reflect how society views it. The statistics are sobering: 80% of the professionals surveyed believe domestic abuse is not sufficiently taken into account in financial remedy proceedings – a figure which rises to 85% in respect of Schedule 1 cases and 87% for cases involving unmarried cohabitants. 

If society generally believes all forms of domestic abuse are “repugnant”, and the vast majority of family law professionals surveyed think it isn’t being adequately addressed, then where does the problem lie? One possible answer identified is the current statutory test for conduct, which states that it should only be taken into account by the court if it would be “inequitable” to disregard it. This is a high bar to meet, which may explain what the report calls the “significant disparity” between how often professionals identified domestic abuse as an issue in their cases and how often it is actually raised as ‘conduct’ in court proceedings. The statutory definition of abusive behaviour itself seems to be reflective of society’s views - the wording of the Domestic Abuse Act 2021 is deliberately broad, encompassing not only physical and sexual abuse, but also economic, psychological and emotional abuse. Notwithstanding this, with the test for conduct being so stringent, there is no clear precedent for judges to meaningfully take account of behaviour widely recognised as abusive when making decisions about parties’ finances. 

The report also points to the concern that there is a lack of awareness amongst judges as to how domestic abuse can arise within the court proceedings themselves. Behaviours such as “withholding funds, hiding assets, delaying, bullying and breaching court orders” are not just routine problems in cases but can be instances of post-separation domestic abuse. This is particularly relevant when the court is considering interim financial arrangements and legal funding applications, as seeking to prevent a former partner from having legal representation by withholding funds, and / or forcing them to take on high-interest litigation loans, are behaviours which in and of themselves could amount to economic abuse. 

Even in cases where the abuse itself may have stopped, there remains a concern that judges are failing to recognise the very real and lasting impact on a victim-survivor of having suffered that abuse. Years of being subjected to coercive and controlling behaviour could well have an impact on a party’s ability to achieve financial independence, and we as family law professionals should engage with the excellent training available to help improve our awareness of these issues, such as that run by Women’s Aid and Safe Lives.

The recommendations in the report are compelling, no doubt because they are grounded in lessons learnt from listening to victim-survivors. One victim-survivor talks of fleeing the family home following repeated instances of strangling and death threats from their husband – having fled, the husband continued to occupy the house (with no incentive to settle) whilst the victim-survivor was forced to continue paying the mortgage (alongside their rent) to avoid their credit rating being damaged. Another victim-survivor describes an all-too familiar situation where a judge made a pound for pound order following their application for a LSPO, following which their ex-partner then just stopped instructing his own lawyers.  

The court has a duty not only to acknowledge when domestic abuse has taken place in a relationship but to protect victim-survivors from further abuse being perpetuated when grappling with the practical issues of dividing a family’s finances. As expected, there are overarching recommendations in the report for clarifying the legislation itself to help achieve this, on the basis that it should be driven by the needs of the majority, not the few who can afford specialist lawyers. Suggestions include inserting a specific mention in the statute that domestic abuse should have an impact on financial proceedings and having a new Practice Direction clarifying that all forms of domestic abuse can cross the threshold of ‘conduct’. 

There are also practical recommendations which would have immediate and tangible benefits for victim-survivors trying to navigate the court process, including:

• Providing for a longer listing for a combined FDA and the hearing of interim applications where a party applies for MPS and/or a LSPO, enabling the court to deal with interim financial matters at the first opportunity, rather than allowing a perpetrator to subject a victim-survivor to threats of cutting them off;
• Maintenance being capitalised wherever affordable, to provide the recipient with the greatest level of financial security possible; and 
• New, automatic methods of enforcement for non-compliance with court orders (including disqualifying the debtor from driving or removing their passport) being set out in the final order rather than forcing a victim-survivor to return to court just to get what they are owed. 

The “overwhelming consensus” from those surveyed is that both we as professionals, and the wider family court system, are not doing enough to stop domestic abuse from continuing (or beginning) post-separation. Resolution is careful to acknowledge that any proposed change has to take into account that the family justice system is underfunded as it is; but the report’s recommendations - which are thoughtful, practical and rooted in the lived experience of victim-survivors - must not be ignored.