A report titled ‘Domestic abuse in financial remedy proceedings’, published on 8 October 2024, highlights the complex interplay between domestic abuse and financial matters during separation and divorce.

The study by Resolution, a community of family justice professionals that works with families and individuals to resolve issues in a constructive way, provides critical insights into the prevalence and impact of domestic abuse in financial remedy cases. Examples given include withholding funds, hiding assets, delaying, bullying and breaching court orders.

Trainee solicitor Rose-Marie Sage examines the report.

The report’s findings

Resolution’s report presents troubling statistics that reveal the widespread nature of domestic abuse in financial remedy proceedings. In producing the study, Resolution gathered 526 responses from a multi-disciplinary working party, including family law professionals and domestic abuse charities.

Three-quarters of professionals reported domestic abuse in over 21% of their cases in the past three years, while nearly two-thirds identified economic abuse in more than 21% of their cases during the same period; yet it was far less frequently raised in financial remedy proceedings. The report notes that a difference between the incidence of domestic abuse and how often it is raised in financial remedy proceedings was expected, given the legal test is that conduct should only be taken into account if ‘it is such that it would in the opinion of the court be inequitable to disregard it’.

That being the case, however, there are still significant concerns from professionals with  79.8% of respondents indicating that the long-term impact of domestic abuse is not sufficiently considered in financial proceedings, and 80.2% reporting that economic abuse is similarly overlooked.

The report explains that the requirement in financial remedy proceedings to evidence a causative link between domestic abuse and an adverse financial consequence does not recognise that research demonstrating that a history of domestic abuse in the relationship is correlated with poorer short-term and long-term financial outcomes for victims. It is noted that the concession in case law that such adverse financial consequence may not be ‘easily measurable’ is troublesome as it may be impossible to measure the financial consequences at the time of a final hearing.

The greatest concern among professionals is the ‘lack of a functional legal aid system’. The report notes that many victim-survivors have evidence to support the domestic abuse they have suffered but do not pass the means test for legal aid and so represent themselves in court.

Resolution also identifies several recurring themes in financial remedy cases involving domestic abuse. These include failure to provide full and frank financial disclosure (now being acknowledged as a form of economic abuse), non-compliance with court orders, and the use of delaying tactics such as failing to engage with lenders or complete necessary steps for selling the family home.

Resolution’s recommendations

Resolution has proposed a series of recommendations to address the issues identified. These include but are not limited to:

• considering if amendments should be made to the Family Procedure Rules 2010 to include amending the overriding objective so that dealing with cases ‘justly’ includes ‘ensuring the parties are safeguarded from domestic abuse’;
• issuing a new explanatory Practice Direction, clarifying the current law around conduct and improving practice to protect victim-survivors;
• conducting every case management decision in financial remedy proceedings in a way that will safeguard the parties from domestic abuse;
• amending the costs rules to try to and stop a party from using court proceedings as a way of perpetrating abuse;
• introducing new enforcement methods as recommended by the Law Commission in 2016; and
• reviewing legal aid thresholds and requirements to improve access for domestic abuse survivors.

While the report calls for greater recognition of abuse dynamics, the extent to which this will materialise will need to be considered carefully by the government and judiciary. In Mr Justice Peel’s recent judgment in N v J [2024] EWFC 184, he states that it is not “easy to see how personal misconduct, with no adverse financial consequence, could readily be quantified in a principled manner. If the court increases the award because of misconduct, but in the absence of any identifiable financial impact, how is that added sum to be quantified?”

Resolution’s report, read in conjunction with case law, illustrates the complexity and challenges faced when domestic abuse features in financial remedy proceedings.

Conclusion

Partner Jenny Duggan comments: “Resolution have produced a thoughtful report which grapples with the way in which practitioners are often stymied in raising accusations of domestic abuse in financial remedy proceedings given the current status of the law, and the impact that can have on victim-survivors. It calls for all family law professionals to better meet the needs of victim-survivors of domestic abuse seeking resolution of their finances on divorce and of course the extent to which there may be a shift in the law will impact this significantly.”

Partner Lisette Dupré, a member of the Resolution working party that prepared this report, comments: “It was a privilege to be part of this working group. In my view this is just the start to better understanding and better practice when it comes to supporting all those victim survivors of abuse dealing with the financial fallout of their relationships. This report is a vital first step and importantly identifies the complexity of the issues. That said, I think there is something we can all do now that will make a difference, and that is better education of the issues. Better education not only for judges but lawyers, mediators, arbitrators, financial advisors and others working in this area.”

Subscribe – In order to receive our news straight to your inbox, subscribe here. Our newsletters are sent no more than once a month.