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Divorcing an abusive spouse – part III

Coercive and controlling behaviour and the family court

 The selected cases in Part II demonstrated how extreme cases of domestic abuse held as gross and obvious personal misconduct such as attempted murder, are likely to be accepted as conduct and have an impact upon the overall financial settlement.

The Domestic Abuse Act 2021, includes coercive and controlling behaviour as a form of domestic abuse.  The issue of coercive and controlling behaviour was addressed in Re H-N and Others (Children) (Domestic Abuse: Finding of Fact Hearings) [2021] – Children Act proceedings.

The case questioned the court’s approach to fact finding hearings and in particular, the use of Scott Schedules to determine patterns of domestic abuse and coercive control. The Court of Appeal raised several concerns in respect of the use of Scott Schedules (broadly speaking, a succinct list of dated allegations) as a potential barrier to fairness and good process rather than being of assistance to the court.

It was held that the use of Scott Schedules prevents a court from having the required evidence of the wider context and fails to show a pattern of coercive and controlling behaviour during a relationship (or after), and instead provides a list of specific dated, timed and factual incidents. It is accepted that abusive, coercive and controlling behaviour will have a cumulative impact upon victims and this is unlikely to be apparent from a Scott Schedule.

This then leads us to consider that on the test of gross and obvious misconduct, when examining patterns of coercive, controlling behaviour and economic abuse during a relationship, the conduct might be less obvious and unidentified.

Where do we go from here?

Conduct arguments as described in OG v AG [2020], amounts to either or a combination of:

1) gross and obvious personal misconduct;

(2) wanton and reckless dissipation of assets;

(3) litigation misconduct; and /or

(4) non-disclosure.

To date, as practitioners we generally advise clients in financial proceedings to:

  1. avoid asserting blame;
  2. conduct arguments in financial proceedings are rarely pleaded or have a very high bar;
  3. to request that there be an ‘add back’ of dissipated assets, these have to be ‘wanton and reckless’; and
  4. overall, the court will be concerned with meeting the needs of each party.

If the conduct argument is accepted by the court, it could have an impact upon the size of the financial settlement in favour of the victim of abuse and / or penalise the other party by way of a cost order.

Financial abuse can cause significant harm, regardless of whether it is a one-off incident or consists of a number of events over several years.  It will also have a significant impact upon the well-being of the victim.  Additional complications arising from cultural and religious expectations of the wider family and community can have a devasting impact upon the victim’s (and their dependents) financial security and future.

Time will tell how the courts will now deal with allegations of domestic abuse with its new definition in financial proceedings. With no-fault divorce applications now in place, which some abused victims might see as a relief to escape an abusive marriage swiftly, practitioners will need to:

    1. weigh up carefully the need to raise blame and conduct,
    2. what impact if any would this have in financial proceedings,
    3. when to raise it and how – with the balance of encouraging settlements in the most cost effective and least confrontational manner, and
    4. to carefully consider out of court options which provides privacy which is desired by many separating couples.

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.

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