Coercion and control – more to do

Reforms introduced under the Domestic Abuse Act 2021 have been welcome in protecting and supporting victims by expanding the definition of domestic abuse. This now includes coercive and controlling behaviour, economic abuse, and physical and sexual abuse.

There is now clear guidance on how to deal with allegations of coercive control within the Children Act arena. If one parent asserts that the other parent has been abusive, the Family Procedure Rules set out how this should be approached with reference to any disputes relating to child arrangements on separation.

The same cannot be said for financial remedy proceedings on divorce. Coercive and controlling behaviour remains difficult to discern, particularly given that such abuse is often part of a wider pattern of subtle and insidious behaviour over time.

Impact on proceedings

The existence of economic abuse and controlling and coercive behaviour in statute does not ensure that victims who suffer from it automatically receive the necessary protection.

Given that such behaviour often relates specifically to financial dealings, it is not uncommon for such abuse to extend to the financial proceedings themselves. For example, the victim may feel under extreme pressure to concede to their spouse’s settlement demands; they may feel bargaining power is completely unequal; they may be subjected to non-disclosure; withdrawal of ongoing financial support; and/or a deliberate ploy on their spouse’s part to prolong the litigation to exhaust the victim’s resources. All of these actions can result in the victim feeling they have no option but to settle on their spouse’s terms.

There are mechanisms that seek to protect victims. For example, a spouse can apply for interim maintenance and/or legal fees funding if their financial support has been cut off. However, it is important to note these applications are costly and thus unattainable for many victims. The court can also put protective measures in place for vulnerable litigants, such as screens in courtrooms to ensure they do not come into contact with their ex-spouse.

Impact on financial outcomes

If coercive and controlling behaviour or other forms of domestic abuse have been suffered during a marriage, or indeed upon separation, there is no guarantee the court will deem such abuse a relevant factor when dividing assets on marital breakdown.

The court’s view is that the ‘conduct’ of a party will only be taken into account when determining finances if it would be ‘inequitable to disregard it’ – an extremely high threshold. Ultimately, when asked to make a financial order on divorce, the family court has no desire to enter the weeds of why a marriage has broken down and who is to blame. As such, coercive and controlling behaviour is often neglected despite it now being recognised as abuse.

So, if it is difficult to exceed the ‘conduct’ threshold, how can victims ensure that the existence of abuse is reflected in the outcome? A court is obliged to consider ‘all the circumstances of the case’. The existence of domestic abuse during a marriage is likely to be relevant when considering the victim’s future financial needs. For example, being prevented from working or acquiring skills and qualifications during the relationship can limit a victim’s earning potential. They may therefore require significant ongoing spousal maintenance payments.

Widening the scope

While coercive and controlling behaviour has been a criminal offence since 2015, the scope was widened in 2022 to remove the need for the victim to be cohabiting with the perpetrator. The number of recorded offences has increased year on year, yet volumes remain much lower than other domestic abuse-related offences. This is presumably (at least in part) for the reasons set out above regarding the challenges in identifying repeated patterns of such abuse.

Hidden, and unforeseen, impacts of the criminalisation of coercive and controlling behaviour can occur when the victim is entirely financially dependent upon their soon-to-be ex-spouse. The criminal record obtained from controlling and coercive behaviour may adversely affect the perpetrator’s ability to retain or obtain employment in the future. This, in turn, is highly likely to affect the family as a whole. For example, the perpetrator’s borrowing capacity will be diminished by a loss or reduction in income. This may adversely affect both parties’ rehousing needs and/or a victim’s claims on divorce for ongoing financial support by way of spousal and child maintenance.

While the 2022 reforms are a welcome and promising step towards supporting victims of coercive and controlling behaviour in family court proceedings, there is still a long way to go. The courts now need to consider the long-lasting impact on victims, establishing tangible routes to protect the financial standing of victims emerging from abusive and coercive relationships.

Katie O’Callaghan is a family partner at Boodle Hatfield