How an abusive party might conduct themselves in financial remedy case and signs of domestic abuse before the court
Following the long awaited definition of domestic abuse provided by the Domestic Abuse Act 2021, the issue of how coercive controlling behaviour and domestic abuse in all its forms is considered by the family court in a financial remedy case is often asked. Despite the new definition, in financial remedy cases we are still guided by existing case law on this issue.
Existing case law, also provides examples of how an abusive party might conduct themselves in a financial remedy case and what evidence might be available to a court in any event of domestic abuse when dealing with a financial remedy case.
As a reminder…
‘Obvious & gross’
In the case of Wachtel v Wachtel [1973], the issue of conduct was considered by the family court and further summarised by Lady Hale in Miller [2006] as follows:
“[…] once the assets are seen as a pool, and the couple as equal partners, then it is only equitable to take their conduct into account if one has been very much more to blame than the other: in the famous words of Ormrod J in Wachtel v Wachtel [1973] Fam 72, at p 80, the conduct had been ‘both obvious and gross’. This approach is not only just, it is also the only practicable one. It is simply not possible for any outsider to pick over the events of a marriage and decide who was the more to blame for what went wrong, save in the most obvious and gross cases.”
The ‘gasp factor’
In reviewing the conduct, reference is often made to whether the alleged conduct results in a ‘gasp’. In the case of S v S [2006] it was held that the conduct raised did not reach the ‘gasp factor’ but was more of a ‘gulp’.
“However, although the whole sad history of the marriage, which I have sketched, and which Judge Hughes made unavailing attempts to save, may leave me with what might be called a ‘gulp factor’, arising out of what each of these two parties did to each other, verbally and physically, I am not left with Mr Mostyn QC’s ‘gasp factor’. I do not conclude that the conduct of the Respondent…was such that it would be inequitable to disregard it in making my orders as to proper financial provision.”
- Examples of conduct reported in financial cases
In OG v AG [2020], the judge set out four types of conduct raised in financial remedy cases. These are:
(1) gross and obvious personal misconduct;
(2) wanton and reckless dissipation of assets;
(3) litigation misconduct; and
(4) non-disclosure cases
The following selected cases illustrate how the court has dealt with the issue of conduct and concern:
- A physical attack causing permanent disability
- The stabbing of a spouse post separation
- Attempted murder
- Concealing paternity
- Concealment of, and secretly transferring funds
- Litigation misconduct
- Disposal of assets
Attack causing permanent disability
In Jones v Jones [1975], the wife was attacked by the husband with a razor which caused her permanent disability. The wife was prevented from being able to work as a nurse. The Court of Appeal ordered the outright transfer of the former matrimonial home to the wife.
Stabbing
In Hall v Hall [1984], the wife applied for financial provision. The husband raised conduct concerning alleged matters during the marriage. The judge held these to be irrelevant.
After the parties had separated however, the wife attended the property where the husband was living and stabbed him with a knife. The judge held that this was conduct which should be considered so as to reduce the amount payable to the wife.
The wife appealed. The Court of Appeal, in dismissing the appeal, confirmed that the judge had correctly held that the wife’s conduct was a relevant factor to be considered since it was both obvious and gross.
Attempted murder
H v H (Financial Relief: Attempted Murder as Conduct) [2005]. This is a case where the domestic abuse in a financial remedy case is without question, gross and obvious.
The husband had been sentenced to 12 years’ imprisonment. He had attempted to murder his wife in the presence of their children. The husband’s conduct had effected the wife’s mental health. The wife was forced to move from the family home and was unable to work as a police officer following the incident. This conduct directly impacted her earning capacity and due to the husband’s imprisonment, she would receive no financial support from the husband for the children.
As a result, the wife’s needs were placed at higher priority to the husband’s, and the wife was awarded almost three times more since the conduct was likely to have an impact upon the children in later years which the wife would have to cope with. It was also necessary for the wife to be made as secure as possible, free from financial worry or pressure.
Paternity
In FRB v DCA [2020], the court found that the wife’s conduct in causing the husband to believe that he was the child’s biological father amounted to conduct that was inequitable to disregard. However, the wife’s award was not reduced as it was held that the husband had provided incomplete financial disclosure and the two ‘behaviours’ were effectively offset against each other.
Concealment of, and secretly transferring funds
In MB v JB [2020] – which concerned a long 30 year marriage, both parties suffered from health problems. The wife claimed she had no assets. The husband’s position was that the wife had throughout their marriage and since separation “engaged in a sustained, complex and hidden campaign of financial abuse” against him. He sought inferences to be drawn that the wife had transferred funds into her late mother’s property and had acquired an interest in that property either by her investment or by inheritance.
The judge held that he was satisfied that that the wife had concealed information about the family finances. The judge also accepted that the wife had, without the husband’s knowledge or consent, used his personal details and obtained funds by forging his signature. Examples of this included the wife re-mortgaging the family home, cashing-in joint policies, accruing debt and risking the family home being re-possessed on two occasions. It was also accepted that the wife had utilised a significant amount of money to pay for furnishings and fittings at her late mother’s property.
In conclusion, following the wife’s failure to provide full, frank or reliable financial disclosure together with her past conduct, the judge held that the wife’s failure to disclose was intentional and for her own benefit and was undertaken to disadvantage the husband. As a result, adverse inferences were drawn by the judge upon the wife’s conduct. The judge stated that “it would be inequitable to disregard the wife’s conduct throughout the marriage…her actions exposed [the husband] to significant financial liability, depleted the funds they did have…”
In addition, the judge added the sum of £160,000 to the wife’s assets and concluded that she would be able to meet all her outgoings from undisclosed income and that her housing needs would either be met by the state or her step-father. The outcome of the decision was for the family home to be transferred into the husband’s sole name on a clean break basis. Overall, this equated to a 62:38 division of the assets in the husband’s favour.
Litigation misconduct resulting in a costs order
In Crowther v Crowther and others (Financial Remedies) [2021], the court found that the husband was guilty of litigation misconduct in financial remedies proceedings.
The husband had unilaterally closed a jointly owned family business with his wife. When doing so, he had transferred all assets, staff and operational activities to a new business which was solely owned by him. It was held that the husband’s conduct was egregious and that it could not be ignored on the issue of costs.
The husband’s conduct meant that the wife was unable to have a share in the income generated by husband’s new business. In addition, the husband had chosen to pay the co-respondents in priority to other creditors. The husband was also found guilty of non-disclosure. This was due to the court accepting that the husband had a lifestyle which was inconsistent with the disclosed financial resources.
Disposal of assets
Impact on award
In M v M (Financial Misconduct: Subpoena against Third Party) [2006], in breach of undertakings, which are solemn promises to the court, the husband failed to provide full and frank disclosure of his financial affairs and had also gambled away a significant amount of money.
The judge took into account the husband’s conduct as part of the court’s exercise and held that the husband’s conduct was a relevant factor to the overall decision and not only on the issue of legal costs. The judge ordered a clean break and departed from equality resulting in the joint assets being divided with the wife receiving 62.5%.
Add back of dissipated assets
This is undertaken in cases where one party has wantonly and recklessly dissipated assets which would otherwise have formed part of the matrimonial assets to be divided. For the dissipated assets to be ‘added back’ to the matrimonial pot, the court must be satisfied that there has been wanton and reckless dissipation of assets. This is a very high bar.
The case of MAP v MFP (Financial Remedies: Addback) [2015], demonstrates the difficulty caused by the criteria of ‘wanton and reckless’, and how the court considers that one party should ‘take their spouse as they find him or her’. In this case the husband was described as having a flawed character due to his addiction to drugs and prostitutes. He spent significant sums of money in payment for his addiction which reduced the amount available to be divided.
The judge however held that the husband had not overspent. The judge, surprisingly for many stated that the husband could not prevent himself from doing so because of his flawed character, which concerned his addiction to drugs and prostitutes and his “obsession with perfection”. Although the expenditure was morally culpable and irresponsible, it was not deliberate or wanton dissipation.
b) How an abusive party might conduct themselves during financial proceedings
If the victim of domestic abuse is the party who has issued proceedings (the applicant), the abusive party (the respondent), might seek to continue to exert control by refusing to cooperate and fail to properly engage in the financial proceedings. This behaviour can cause delay and additional legal fees for the victim.
A study in 2017 found that women are more likely than men to compromise in their attempt to achieve an amicable settlement although legal representation does protect victims in avoiding unfair outcomes.
c) Evidence of domestic abuse in financial proceedings
Within financial proceedings however, a victim is unlikely to provide sufficient details of the domestic abuse to the court. This will follow advice from their solicitor, which is often difficult to accept, namely that abusive conduct is pursued in limited cases.
There should however be signs of domestic abuse before the court in the following forms although untried in the financial proceedings. These will include:
- A party being exempted from having to attend mediation prior to the issuing of proceedings.
- The existence of an injunction or undertaking under the Part IV Family Law Act 1996 as disclosed in Form E’s.
- A reference to abuse in preliminary background information documents.
- Examples of economic abuse.
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.
