Abusive behaviour and finances on divorce

The BBC reported on a case recently where a woman, who was the victim of domestic abuse (her husband was convicted of the crime of coercive control) still had to pay him a significant lump sum of money following their divorce. She asked, quite understandably, how that could possibly be a fair outcome in light of his behaviour towards her.

Shouldn’t the Family Court take abusive behaviour into account and shouldn’t it have an impact on the outcomes?

This is something that we are often asked by client’s who unfortunately find themselves in a similar situation. Many people assume that if their spouse has been abusive that such behaviour will automatically result in them receiving a smaller financial award. In reality, it is not that simple.

The Family Court can take abusive behaviour into account but it may not always impact the outcome.

How does the Family Court consider conduct?

For a divorce or dissolution we work with the Matrimonial Causes Act 1973 and Civil Partnership Act 2004 which includes that the Court must consider (among other factors): 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.

What does “inequitable” mean? At it’s most basic we could say it’s simply whether it would be legally unfair to ignore the behaviour.

Judges have wrangled with this question for many years across many cases and it is still a very difficult question to address because sometimes the behaviour is, as here, truly appalling and abusive but, when looking at the question of financial needs on a divorce, it may not have actually impacted the financial “pot” that the two people divorcing need to make use of to move on with their separate lives.

What types of conduct might affect a financial settlement?

A well known case of OG v AG decided in 2020 saw a very senior Judge (Mr Justice Mostyn) set out four main categories that might apply here which boil down to:

1)     Personal misconduct (but really intended to be where personal behaviour was such that it impacted the finances)

2)     Wanton and reckless dissipation requiring “add back” (namely, spending it all elsewhere and not for the benefit of the marriage/family)

3)     Litigation misconduct (often where they have simply ignored or flouted court orders to derail the other person’s financial claims) and

4)     Inferences that can be drawn (commonly when someone has deliberately not disclosed their assets properly and the court infers what they actually have available to them from other information)

How can domestic abuse affect finances on divorce?

While conduct arguments remain difficult, domestic abuse can have financial consequences.

For example, abuse may affect:

• A victim’s ability to work or progress in their career.
• Their mental health and future earning capacity.
• Their need for housing or ongoing support.
• The depletion of assets through financial control or economic abuse.

Our understanding of what can be domestic abuse and the far reaching effects of that abuse (not just on the direct victim, but also children of the family) continues to evolve socially, culturally and, more slowly, legally.

But, the “bar” that must be reached/crossed in evidence for a judge making a decision about the division of assets in a divorce/civil partnership dissolution is still very high.

When will domestic abuse be relevant to financial remedy proceedings?

Generally, domestic abuse is not relevant in the context of financial remedy proceedings if it has no financial impact and is not clear or severe. One example of where domestic abuse could be relevant, were if one party were badly injured by their spouse, and if the injuries sustained then impacted on their ability to work and earn in the future.

Taking advice before raising conduct arguments

Expert advice should always be taken before deciding whether to argue conduct in a financial remedy case. The stakes can be high, and if you get it wrong, not only will it potentially create further conflict and animosity between the parties, but also, the courts can make costs orders against the party who has misguidedly pursued a case for conduct.

Our family law team has extensive experience advising clients in cases involving domestic abuse, coercive control and complex financial remedy proceedings. Please do not hesitate to contact our Family team.