Should domestic abuse have a greater impact on financial remedy proceedings? More specifically, should a breadwinner who makes it harder for a separating partner to obtain financial support on the breakdown of a relationship be ordered to pay more?
A report last week from Resolution, a group representing family justice professionals, calls for a cultural shift to better meet the needs of those affected. The lawyers’ association, which supports a non-confrontational approach to resolving family issues, believes that the current approach of the courts can lead to unfairness. But although it makes a variety of practical recommendations, the Resolution report has not managed to resolve what it accepts is a complex issue.
Another complex issue is terminology. In her annual report, also published last week, the government’s victims’ commissioner Baroness Newlove observes that ‘some victims dislike the negative connotations occasionally associated with the term “victim”’. Instead, she writes, ‘some victims and many non-statutory agencies prefer to use the word “survivor”’. It is a view that Newlove respects – but has not adopted.
The Resolution report tries to keep everybody happy by using the phrase ‘victim-survivor’. Its authors say this term ‘focuses on the person having overcome their experiences’. Like Newlove, though, I prefer traditional terminology. Some of those we are talking about have not ‘survived’ their abuse: it still continues.
From medieval times until little more than 50 years ago, the parties’ conduct during a marriage was central both to the grant of divorce and to financial relief. Following legislative reforms, though, the courts decided in 1973 that, in most cases, financial provision should not be reduced ‘merely because of what was formerly regarded as guilt or blame’.
Under section 25 of the Matrimonial Causes Act 1973, as amended, conduct can be taken into account in awarding financial provision only if it would be inequitable to disregard it. Two recent judgments by Mr Justice Peel suggest that the courts are unwilling to go back to the days when a party’s conduct was treated as a relevant factor in financial remedies litigation.
And that is despite a recent statute that, in a different context, defines ‘economic abuse’. In passing the Domestic Abuse Act 2021, parliament recognised that abuse in a personal relationship includes behaviour that has a substantial adverse effect on a partner’s ability to acquire money or to obtain goods and services.
If a former partner suffers fresh economic abuse on the breakdown of a relationship, should that victim be entitled to compensation for it? In his introduction to the Resolution report, the association’s chair Grant Cameron says that family justice professionals have long been familiar with litigants who attempt to prevent their former partners from receiving a fair financial settlement.
‘Withholding funds, hiding assets, delaying, bullying and breaching court orders are persistent problems that professionals must grapple with,’ he writes. ‘However, it is only following recent developments we have come to understand that these behaviours are post-separation domestic abuse.’
It would be wonderful if renaming this longstanding misbehaviour made it go away – or even deterred it. In a perfect world, the wealthier partner would stop acting abusively to avoid the risk of being ordered to pay the victim more. But family disputes do not always play out that way.
We have all read of warring spouses who would rather spend their money on lawyers than agree a settlement. Some partners accused of domestic abuse would simply double down. A High Court master in Northern Ireland acknowledged recently that ‘the litigation process itself may be being used as a means of coercive control by one spouse against the other’.
Writing in the Financial Remedies Journal this month, a specialist barrister argued that the courts’ current approach was not in keeping with the economic effects of domestic abuse. Femi Ogunlende suggested that the high bar and procedural hurdles set by the courts in recent cases might be discriminatory, given that women were more likely than men to suffer domestic abuse.
But the working party that produced last week’s report heard ‘concerns expressed both by lawyers and the judiciary that the court system would not be able to cope if there were any changes that could negatively impact on settlement rates’. Resolution accepted that ‘the level of resources available to the system is seen as a big constraint on its ability to take the issue of domestic abuse into account’. Explaining why the report had not reached a conclusion, one of its authors said the challenge had been to achieve fairer outcomes without negatively impacting settlement rates and increasing costs.
The Law Commission has been examining financial remedies ahead of a scoping report to be published in December. Although we may have to wait a year or two for its final recommendations, rushing through ill-considered reforms in the meantime could put victims at risk.
joshua@rozenberg.net
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