Solicitors often consider domestic abuse in family law matters relating to children, however advice relating to domestic abuse in financial remedy proceedings is becoming more prevalent, when there are allegations or concerns about financial abuse following a marriage or civil partnership breakdown. Research suggests that approximately one-third of financial remedy cases within the courts have domestic abuse in the background. This has led to a groundbreaking report by Resolution to consider the links between domestic abuse and the treatment of finances on separation and divorce.
Domestic abuse is defined by s1(4) of the Domestic Abuse Act 2021 which includes not only physical violence but also sexual, psychological, and economic abuse, as well as coercive and controlling behaviour. Many victims of financial domestic abuse, report the other party withholding funds, so that spouses cannot meet day-to-day expenses for themselves or the children, hiding assets and elongating proceedings to exhaust the other parties’ finances.
Traditionally family lawyers utilise Section 25 of the Matrimonial Causes Act 1973. However section (2)(g) of that Act requires the court to consider 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. Resolution’s view is that the courts’ current approach to s25(2)(g) may lead to unfair outcomes for victims of domestic abuse. Therefore, the role of the Domestic Abuse Act 2021 in financial remedy proceedings is evolving.
Recent research carried out by Resolution found that financial abuse occurs in as many as 99% of domestic abuse cases. Additionally, 80% of family professionals considered domestic abuse, and particularly economic abuse, was not sufficiently considered by the court in financial remedy proceedings. This figure rose to 85% in respect of Schedule 1 Children Act 1989 cases (which involves the provision for children) and rose again to 87% in cohabitation disputes, where the parties never married.
Resolution’s research also suggested that 90% of family professionals said there was insufficient access to Legal Aid in respect of domestic abuse cases. This is particularly concerning when there are sufficient matrimonial funds available but such funds remain inaccessible to one party. Why should one party be required to fund an expensive and lengthy process to gain access to funds whilst the other party can utilise the funds contained in the matrimonial pot?
This report does not set out how to achieve a final recommendation about how to resolve these complex issues but rather to draw attention to the issue, so that where such conduct is post separation domestic abuse, it is recognised and could or should play a role within financial remedy proceedings.
If you are going through a relationship breakdown, please feel free to get in touch to discuss your options.
Simone Brown, Consultant Solicitor
