The Definition of Domestic Abuse
In Children Act cases, solicitors will routinely advise when domestic abuse will be an active issue for the court to adjudicate upon before reaching an overall decision for child arrangements. However, such advice is not so forthcoming when dealing with financial remedy application following the breakdown in a marriage or civil partnership.
Historically, domestic abuse has been ignored in financial remedy proceedings as it rarely meets the high level required to constitute ‘conduct’ under s 25(2)(g) of the Matrimonial Causes Act 1973.
As a reminder, in a divorce or dissolution matter the court shall have to section 25(2)(g) of the Matrimonial Causes Act 1973 (“MCA 1973”), which is:
“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.”
Domestic abuse is likely to be a feature in many relationship breakdowns, although the details will not be so apparent to the court in a significant number of financial remedy cases. In addition, an abusive spouse might use the financial proceedings as an additional tool in their attempt to continue to control the financially weaker party even after separation.
Definition of Domestic Abuse
The Domestic Abuse Act 2021 now provides a definition for domestic abuse which is:
1. The behaviour of a person (“A”) towards another person (“B”) is “domestic abuse” if—
a) A and B are each aged 16 or over and are personally connected to each other, and
b) the behaviour is abusive.
2. Behaviour is “abusive” if it consists of any of the following
a) physical or sexual abuse;
b) violent or threatening behaviour;
c) controlling or coercive behaviour;
d) economic abuse; and
e) psychological, emotional or other abuse.
It does not matter whether the behaviour consists of a single incident or a course of conduct.
In respect of “economic abuse”, this will refer to any behaviour that has a substantial adverse effect on B’s, usually the weaker party, ability to:
a) acquire, use or maintain money or other property, or
b) obtain goods or services.
Examples of economic abuse often cited include:
- depleting the victim’s finances
- damaging or destroying the victim’s property
- preventing the victim from working or confiscating their wages
- limiting the victim’s access to funds or financial information
- arrangements so that the victim is personally liable for loans, credit card debts, and impacting the victim’s credit rating ensuring the victim is financially dependent upon them refusing to provide child support
Other indications of economic or financial abuse could include:
- the perpetrator’s legal fees being paid from savings and income – an arrangement disallowed to the victim.
- the perpetrator spending significant sums of money on joint credit cards without the other party’s permission.
- the perpetrator controlling or owning all the assets and income.
- the perpetrator refusing to provide financial support to the victim forcing an application for interim maintenance (which is later settled before a hearing) causing emotional distress, anxiety and an increase in legal fees.
- the perpetrator launching campaigns which causes a family company to lose significant clients and income.
- the perpetrator upon separation, terminating the employment of various family members in a family business causing deep distress and financial difficulties.
Steps that you could take before meeting with your solicitor
As already mentioned, in order to raise conduct and to succeed in a financial remedy case, you must meet the high level required under s25(2)(g) of the Matrimonial Causes Act 1973.
Steps you could take in advance to assist with providing clear instructions to your solicitor if you consider that domestic abuse is an issue that should be raised in your financial remedy case could include:
- Preparation of a chronology of events highlighting specific incidents but also, where possible, draw attention to patterns of coercive, controlling and financially prejudicial behaviour.
- Consider what independent evidence you would be able to provide.
- Do you have notes or written records that you might have kept over a period of time relating to the incidents? This could include emails and other forms of messaging.
- How have you been impacted financially, because of the abuse that you have been subjected to. This includes past, current and future financial prejudice.
- Think about, whether you require protective court orders to protect yourself and any dependent children against abuse before you issue divorce proceedings. Would there be a risk that your spouse will react in an abusive and threatening manner in the absence of such protection?
If you believe you are a victim of domestic abuse and need assistance, please do not hesitate to contact our team of experienced family lawyers who can help with your situation.