Domestic Abuse and Divorce Finances

Opinion: Resolution’s Domestic Abuse Report 2024

I welcome Resolution’s important report into domestic abuse in financial remedy proceedings which was published earlier this month. The report produced some stark statistics as to the impact of abuse within financial proceedings as well as some recommendations to help victims of abuse. The blog will outline some of central points which affect this firm’s clients and provide some initial thoughts on the way forward.

I would suggest anyone who believes they may be suffering from economic abuse read our blog on the subject from earlier this year. If you believe you are experiencing such abuse then you should contact your family solicitor as soon as possible. All of us at Maguire Family Law are trained in spotting the signs of domestic abuse and provide effective guidance for navigating family law proceedings.

What is Economic Abuse?

The Domestic Abuse Act 2021 (‘DAA’) provides the definition for domestic abuse with English law and in there is a specific definition of ‘economic abuse’ outlined in s1(4) of the DAA. The definition outlines that if a spouse prevents the other from being able to use, maintain or acquire money, property, goods or services it could be considered economic abuse.

Findings of the Report

The report surveyed professionals within the family sector or regularly become involved in family matters. These included solicitors, barristers, financial planners and mediators. Some of the key findings were as follows:

The levels of domestic abuse during separation

Around 75% of professionals considered that domestic abuse was apparent between couples in more than 21% of their cases.

Approximately 65% of professionals felt that economic abuse was evident between spouses in more than 21% of their cases.

Domestic abuse during financial remedy proceedings

During court proceedings, just under 80% of professionals surveyed felt domestic abuse was not sufficiently taken into account.

In a similar vein, just over 80% of those working in the family sector felt economic abuse in particular was not considered in enough detail during court proceedings.

Complying with court orders

The majority of respondents to the survey said that between 21-60% of their cases involved non-disclosure of financial documents.

After the cases had finalised just under 40% of professionals stated that 10-40% of cases had an issue where one party failed to comply with a final court order.

Australia

Resolution also provided commentary on how the Australian government is currently consulting as to whether domestic abuse can be taken into account when separating a couple’s property. It should be noted that Australia is a separate jurisdiction who have different ways of handling divorce compared to England. However, it is certainly an interesting approach and should in be enacted its impact should be watched by the English courts.

Economic Abuse Summit & “Conduct” within financial remedy proceedings

A recent summit considered whether legislative change is needed in this area. The Matrimonial Causes Act 1973 (‘MCA’) is the piece of legislation used by the English courts in financial remedy proceedings. Section 25 of the MCA sets out the relevant factors the court will look at when determining how the parties’ assets should be separated. There is no explicit domestic abuse factor the courts consider during proceedings. Furthermore, whilst conduct is a factor, the bar for the courts to consider conduct is extremely high.

The Economic Abuse Summit discussed several options to combat the highlighted issues. One approach was to include domestic abuse within the definition of the conduct factor. A more technical approach was considered which would be to create a new factor within section 25 of the MCA specifically for domestic abuse.

The alternative was not to make any legislative change as the current wording provides sufficient flexibility to the court to reflect society’s improved understanding of domestic abuse and the cost of economic abuse.

Further on this point, Resolution did suggest that a practice direction be prepared in any event in order to assist practitioners, litigants in person and judges understand the statutory threshold of conduct in the section 25 factors. A practice direction could also clarify examples of how domestic abuse should impact proceedings and where there are allegations of economic abuse then the maximum affordable sums should be provided to the victim.

Resolution’s Recommendations

Whilst not all the recommendations are listed here, I have outlined those which could impact the firm’s clients.

Resolution have recommended that parties should be informed of non court dispute resolution (NCDR), which includes mediation, even if domestic abuse is prevalent. However to ensure domestic abuse cannot impact such processes, NCDR specialists and legal professionals need to have training to spot such issues and robust and continuous assessments of parties in relation to risk, suitability and safeguarding.

A review of the laws relating to interim spousal maintenance, otherwise known as maintenance pending suit orders, and other interim arrangements has been suggested by the report.

A call for change to the MCA legislation on Legal Services Payment Orders (‘LSPO’) to make it more compatible with the DAA was also made. LSPO’s are where one party is ordered to pay money to their former partner’s solicitors during court proceedings.

Resolution is inviting further consideration to impose costs orders and unless orders against spouses who fail to provide full and frank disclosure in pre-proceedings or NCDR. However, this would only be if suitable safeguards are put in place for vulnerable parties who cannot comply. The report also recommends that’s it is made clear that the duty of full and frank disclosure begins at the NCDR stage or pre-proceeding correspondence.

Regarding the section 25 factors, Resolutions position is that whilst they have no firm recommendation at this time given the complex nature of the issue. Although is raises concerns that some court’s current approach to the conduct factor within section 25 are creating outcomes which are leaving victims of domestic abuse vulnerable.

My thoughts

I am grateful to Resolution for producing this report and bringing into focus an important issue in the family court system.

In regards to including domestic abuse within the section 25 factors I concur that this is a complicated matter. However, I would not support an overhaul of the current legislation as this is unlikely to assist litigants in person and will lead to inevitable confusion whilst case law is created.

However I would see benefit to a practice direction, as recommended by Resolution, to provide guidance to all those involved in the court process and set out the relevant thresholds and cost implications at the outset. In my view this would allow the current legislation to be interpreted in a way which protects victims of all forms of domestic abuse.

With NCDR, I am supportive of such routes when it is appropriate for the parties involved, as it is obvious NCDR is not beneficial when domestic abuse is prevalent in the relationship. I agree that the court should not dispute a mediator’s opinion that parties are receiving no benefit from mediation when considering when considering whether to allow an exemption to a MIAM. This would also be important if the sessions are being used by the perpetrator of domestic abuse to intimidate their victim. I believe mediation is a fantastic option for some couples, but for others it is simply not practical.

I would also support changes to the laws surrounding MPS, LSPO’s and full and frank disclosure. These recommendations would make the processes easier on all those using the family court system as well as providing additional protection to those suffering domestic abuse.

Maguire Family Law team are able to assist with all aspects of a relationship breakdown so please contact us if we are able to assist you further.