In this article our colleague Lehna Gardiner, in conjunction with her peer Matthew Bliss at JSP Law, examines the situations where Family Law and Criminal Law coincide and what clients need to be aware of in order to protect themselves.
The nature of relationship breakdown and divorce, and disputes about the arrangements for children, means that all too often family proceedings result in the need for criminal advice, and vice versa.
When a client finds themselves in both the criminal and family law systems, this can add another layer of complexity and pressure.
In this scenario, it is essential to take advice from solicitors who are experienced in both areas. Few lawyers are proficient in both and it is likely that advice will be needed from separate experts who can work together to protect your interests and achieve the best outcome.
Family law and criminal law often cross over where there are allegations of domestic abuse, assault or harassment between partners or spouses. The relatively new offence of coercive and controlling behaviour is being raised more frequently and, once alleged can play a significant role in both the divorce/separation and any children proceedings. The standard of proof in family proceedings is different to criminal proceedings; it is the ‘balance of probabilities’ rather than the higher threshold of ‘beyond reasonable doubt’. This can mean, for example, that a person can be acquitted in criminal proceedings but still have to go through a fact finding hearing in family proceedings, where the court will hear all of the evidence again. An important decision may need to be made at an early stage about which proceedings should take place first and what overall strategy is likely to be the most effective. A team working approach between the criminal and family lawyers will be crucial.
Proceeds of crime and confiscation proceedings are another area of criminal law where family advice may also be critical. If confiscation orders arise in the context of divorce proceedings, the family court will carry out a balancing exercise between the public interest in the confiscation order being satisfied and the interests of the other spouse, often claiming assets both on their own behalf and for the benefit of any children of the family.
Whilst all cases are different, the inevitable issues that arise in concurrent family and criminal proceedings should be carefully considered and a cohesive strategy implemented at an early stage.
If you need to discuss any of the issues raised in this article please get in touch with the team at Rayden Solicitors.