For a long time, the Family Court in England and Wales have applied an extremely high threshold when it comes to considering behaviour and its impact on the division of finances between separating spouses and civil partners. However, in recent years, we have seen an increasing understanding of domestic abuse, for example through the Domestic Abuse Act 2021. This has led to calls for reform to the approach in financial remedy proceedings from many family law professionals.
What is the current position on conduct and domestic abuse?
Whilst conduct is one of the factors set out in Section 25 of the Matrimonial Causes Act, the list which a Judge must consider when determining finances on divorce or dissolution, this is caveated by the wording “if that conduct is such that it would in the opinion of the court be inequitable to disregard it”.
There are four recognised situations when conduct would be relevant, as confirmed in the case of OG v AG in 2020:
- Gross and obvious personal conduct by one party against the other, normally, but not necessarily, during the marriage or civil partnership.
- Where one party has wantonly and recklessly dissipated assets which would otherwise have formed part of the divisible matrimonial property.
- Litigation misconduct, i.e., bad behaviour within the proceedings.
- Where one party fails to give full and frank disclosure.
In relation to obvious personal conduct, the common acceptance is that the bar is high. In the case of H v H in 2005, the husband’s attempted murder of the wife was deemed exceptional enough to qualify as behaviour that it would be inequitable to ignore, but this led to a general understanding that anything less would not qualify.
Changes were seen in Children Act proceedings following the landmark Court of Appeal case Re H-N and Others (Children) in 2021, where guidance is given about how to deal with allegations of domestic abuse (including coercive and controlling behaviour and financial control), directing the Court to focus on the wider context shown by patterns of behaviour rather than specific incidents.
Unfortunately, though many hoped it would, this did not follow through into financial remedy proceedings, as was seen in the 2024 case of N V J. In this case between separating civil partners, the Judge refused to factor in the behaviour of a partner whose sexual affairs and dishonesty led to severe mental health issues for the other, who required treatment over a five-year period based on false assumptions that he was paranoid, delusional and psychotic. The Judge, Mr Justice Peel, said that “The question is not whether domestic abuse per se is vile and indefensible, for it indubitably is. The question is whether the domestic abuse alleged in this case is potentially a relevant factor in financial remedies litigation, in circumstances where ‘conduct’ is, in accordance with both statute and case law, only to be taken into account if it is of a highly exceptional nature”. Therefore, whilst domestic abuse is morally wrong, it did not meet the threshold for consideration in Financial remedy proceedings.
Furthermore, conduct is a two-stage test. Even if the high threshold for conduct is met, the person relying on a conduct argument must then prove a material financial consequence of the alleged behaviour. If they cannot do this, then the Court will determine at an early stage that the issue of conduct cannot be pursued.
In conclusion, in most cases, domestic abuse will not satisfy the strict conduct thresholds currently in place in the Family Court in England and Wales. If the Court has determined that domestic abuse does not meet the threshold, the presence of abuse is effectively ignored, even though it may impact on other factors within the proceedings.
What are the problems with the current approach, or lack thereof, to domestic abuse?
In October 2024, Resolution, a leading group of family law professionals, released a Report on the interplay between domestic abuse and the treatment of finances on divorce and dissolution. In this, it reveals that around 80% of professionals “believe domestic abuse and specifically economic abuse is not sufficiently take into account in financial remedy proceedings”.
Subsequently, the Nuffield Foundation funded Fair Shares report on domestic abuse in financial remedy proceedings has been released. This largely mirrors those concerns raised by Resolution.
These concerns came through in key themes:
- The obligation to consider Non-Court Dispute Resolution Both papers recognised the difficulty in the recent rules regarding NCDR – namely that parties must consider alternative options to court to include mediation, arbitration and private FDRs, and that they can be penalised with costs orders or a delay to the proceedings if they do not. Whilst NCDR could be suitable to some, a concern was that these forums could be used to continue a power imbalance and economic abuse, especially without strict disclosure rules in place. The Fair Shares report noted that “[v]ery few domestic abuse survivors had successfully used mediation to reach a financial arrangement”.
- The requirement to deal with conduct at an early stage of proceedings. The present law requires conduct to be raised at the earliest opportunity. The Court will then decide (as early as the first hearing) whether that conduct can be pursued. This is the only one of the section 25 factors which must be determined early and there are concerns it is premature. This early adjudication can prevent victims raising facts which might be influential in the assessment of how the other factors are considered – for example, length of the marriage, earning potential or behaviour within the proceedings.
- The failure of the high threshold to address the long-term financial impact domestic abuse has on victim-survivors. In 2019, Women’s Aid reported 56.1% of victim-survivors said that domestic abuse had impacted their ability to work, and over two-fifths felt the abuse had negatively impacted their long-term employment prospects and earnings. The Fair Shares report noted that “up to five years after their divorce, female domestic abuse survivors continued to be more likely than other women to be in financially precarious situations”. This included being less likely to be in paid full-time work, less likely to live in owned homes and more likely to be on Universal Credit. There are concerns that this impact is not sufficiently factored into the financial division and goes against the Court’s stated objective which “is to give each party an equal start on the road to independent living.” (Miller v Miller; McFarlane v McFarlane [2006]).
- Unaddressed continuation of the abuse through the proceedings. It was recognised that behaviour which is now recognised as economic abuse, such as the failure to provide full and frank disclosure, comply with court orders and reckless spending to deplete the pot, is not adequately addressed in financial remedy proceedings.
- The ability of a victim-survivor of domestic abuse to fund legal representation in financial remedy proceedings. This may be where the finances are held in the other party’s sole name or where they struggle to obtain legal aid to assist with their costs either due to their means (which are too high to qualify for legal aid, but too low to afford a solicitor) or the lack of legal aid providers in their area.
What could changes look like?
Resolution suggest that there needs to be “a cultural shift from all family justice professionals to better meet the needs of victim-survivors of domestic abuse seeking the resolution of finances on divorce”.
Both reports make recommendations for how this can be addressed, to include:
- An amendment to the Family Procedure Rules, which govern the family justice system, to ensure parties are safeguarded from domestic abuse. This will place the responsibility on legal professionals such as solicitors and judges to ensure that behaviour within proceedings is not a continuation of abuse.
- Further consideration of the statutory wording pertaining to conduct to ensure the bar is not set prejudicially high. Resolution did not conclude what the change, if any, should be and welcomed a wider discussion on this. The Fair Shares report took a similar approach, noting that any revision to the law needed to be balanced against the implications for an already over-burdened court system, given that domestic abuse allegations are often highly contested and will require more court time.
- An explanatory Practice Direction setting out the approach where there is domestic abuse or allegations of abuse to give certainty, especially to those acting without legal representation. This Resolution recommendation was strongly endorsed by the Fair Shares report.
- Clear rules on the duty of full and frank disclosure which must start before court proceedings are commenced, for example through solicitor negotiation or NCDR, and an amendment to costs rules to allow this behaviour to be penalised through a cost order. Moreover, an explicit consideration of whether NCDR is appropriate in circumstances when there is domestic abuse or allegations of abuse.
- Changes to rules on interim maintenance and orders that one party should fund the other’s legal costs to provide security to the financially weaker party whilst proceedings are ongoing. This could include the Judge dealing with interim payment of the mortgage and outgoings for a property at an early hearing, or the Judge ordering that the financially stronger party should fund the legal costs of the financially weaker party. Whilst the latter is already a possibility, the current law requires the financially weaker party to exhaust all other options for funding their legal costs to include by taking out high interest loans and credit cards. Resolution feel that this is entirely unnecessary if there are resources within the case, albeit in the name of the other party.
- Inclusion of consequences for non-compliance of a financial remedy order in the order itself, especially if enforcement proceedings seem likely. This could include holding back an “enforcement fund” to assist a victim-survivor to meet the legal costs of enforcement proceedings if necessary. If the order is complied with, this fund would then be released back to the perpetrator.
- Review to the financial thresholds for legal aid, so this can be more easily accessed by victim-survivors, and an increase in the rates that legal professionals are paid to undertake legal aid cases to increase the number of providers than can afford to offer this work.
- Work on the preconceived idea that victim-survivors should appear completely blameless, and that if they have fought back the parties are “as bad as each other”. Instead, to look at the underlying reality of which party has control.
So, what now?
There are loud voices calling for a reformed approach to domestic abuse in financial remedy proceedings, however it is likely that any change will be slow.
Changes to the statue that sets out the factors which a Judge must consider, a statute which has been largely unchanged in this respect since 1973, will require the input of government. Whilst the Law Commission, who advise the government on changes to statute, have recently undertaken scoping report to see if change is needed to the factors as a whole, this report has been years in the making and any changes arising from it will likely take years. Furthermore, given that the family justice system is under-resourced and still facing significant backlogs, there will be a wariness to make changes that could exacerbate this.
Amendments to the Family Procedure Rules can happen sooner, as can a shift in cultural attitudes which filter through in case law, but at present there are no concrete plans for change.
Our Family team at Stephens Scown continue to monitor any changes to the law so we can put your best case forward. We are on hand to assist you through the process, protect you where possible and fight for a fair outcome for you. Get in touch with our team today on 0345 450 5558 or enquiries@stephens-scown.co.uk