The Fair Shares Report, published in November 2023, provided a comprehensive overview of the financial settlements that people make on divorce. Additional recent analysis of the dataset focuses on the issues facing survivors of domestic abuse, including their profile, their experience of the divorce process, the asset splits, and how these divorcees are doing up to five years after divorce.
A particular finding that emerges from the new report is the importance of legal support and use of the formal legal process to divorcing survivors of domestic abuse. I believe caution needs to be exercised when reflecting on the appropriate family justice process for survivors, particularly in light of the current push towards non-court dispute resolution for all divorcing couples.
The new findings show that while male and female survivors of domestic abuse were no more or less likely than other divorcees to try out-of-court routes, such as mediation, to reaching a financial arrangement, they were more likely than other divorcees to have used lawyers to try to sort out their finances. In the end, female survivors were less likely than other female divorcees to have reached a financial arrangement (although male survivors were as likely as other male divorcees to have done so).
Among women who reached a financial arrangement, the use of formal legal processes was notable in two key findings. First, the majority of arrangements made by female survivors (61 per cent) were made into a court order, far more likely than for other female divorcees (42 per cent). Second, female survivors were more likely to use contested court proceedings, with 17 per cent of survivors reporting that their case had been determined by a judge compared to only four per cent for other female divorcees. Conversely, very few female domestic abuse survivors had successfully used mediation to reach a financial arrangement. Only four per cent of arrangements made by female survivors had been made via mediation compared to 19 per cent of arrangements made by other female divorcees.
These findings clearly have implications for policy and practice, particularly regarding the prioritisation and use of non-court dispute resolution where domestic abuse has been found or alleged. This is made all the more important given the new pre-action protocol in the Family Procedure Rules, which provides robust encouragement for early resolution of private family law disputes. Failure by either party, without good reason, to comply with key aspects of the new protocol by not engaging with non-court dispute resolution (NCDR) may result in a departure from the general starting position of no order as to costs.
While changes to the Family Procedure Rules to ensure that courts encourage parties to undertake NCDR are a positive development for most couples, the Fair Shares report's additional findings provide a note of caution in relation to domestic abuse survivors. The findings show not only that domestic abuse survivors are using the court in higher numbers to resolve their financial and property matters, possibly because they need robust judicial oversight and intervention, but also that very few survivors are coming to an agreement using mediation. Therefore, the new report suggests that questions are raised as to whether the strong push to divert cases away from the court is appropriate in all cases. Given the low success rate for domestic abuse survivors using mediation, any additional compulsory period spent on this form of non-court dispute resolution may simply exacerbate existing vulnerabilities and power dynamics in these cases, and result in more costs being incurred as a result of the delay in the case reaching a judge. It is particularly important here to note that domestic abuse survivors in this study were more likely to report feeling that their ex-spouse had the most say when coming to the financial arrangement. Indeed, if unequal power dynamics – effectively a continuing form of controlling behaviour post-divorce – and non-disclosure are hampering any true negotiation, reducing opportunities for survivors to have their ‘say’ in any outcome reached, survivors may succumb to pressure to agree out of court and end up with a potentially poor settlement. Alternatively, costs may actually be increased, rather than reduced as couples may end up back in court following an unsuccessful sojourn/detour into NCDR when a formal hearing might have resolved the dispute more swiftly and potentially with a better outcome for the survivor.
Further amendments to the Family Procedure Rules could be considered to ensure that the court explicitly considers whether domestic abuse explains a party’s reluctance to engage with NCDR. In this regard, the new report supports Resolution’s recommendations that confirmation is needed within the rules to clarify that domestic abuse is a valid exemption from the Pre-Action Protocol, and that survivors will not be faced with the prospect of a costs order being made against them if they fail to engage in NCDR because of domestic abuse.
Emma Hitchings is professor of family law at the University of Bristol Law School
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