Within Resolution’s ground-breaking report published this month there is a call for a “cultural shift from all family justice professionals to better meet the needs of victim-survivors of domestic abuse seeking the resolution of finances on divorce”.
There is an acute awareness by all of us who practice in family law that abusers use the court process as a conduit to perpetuate their abuse of their former partner/spouse.
Despite the Domestic Abuse Act 2021 recognising economic and financial abuse as a form of abuse, there remains an absence of sufficient awareness, recognition and safeguards to protect victims in the run up to and during the court process in financial cases. Consequently, perpetrators of abuse have long been able to act with a sense of impunity within financial proceedings, often without consequence.
The tactics deployed by an abuser within litigation are commonplace and well known. Examples are captured within Resolution’s report under the heading ‘Experiences of victim-survivors’, highlighting how courts have been ill equipped to prevent the abuser from manipulating the court system, thus inadvertently allowing them to capitalise on its failings to their financial advantage, prolonging the abuse and causing the victim maximum emotional stress as well as financial pressure. Resolution’s report serves to shines a bright and much needed light on this issue.
As legal advisers, we are frequently reminded of the ‘high threshold’ of the statutory test at s.25(2)(g) i.e. that the conduct ‘is such that it would in the opinion of the court be inequitable to disregard it’. Peel J in Tsevtkov v Khayrova [2024] 1 FLR 937 has stated that the conduct has consistently been set at a ‘high or exceptional level’ and, even if that hurdle is jumped, there is invariably a requirement to establish a causative link between the alleged conduct and financial loss. In the more recent decision of N v J [2024] EWFC 184, it has again been reiterated by Peel J that conduct is ‘only to be taken into account if it is of a highly exceptional nature’.
The anecdotal extracts in Resolution’s report from solicitors who have acted for victim-survivors are likely to resonate with most practitioners. But are the complaints ‘highly exceptional’? Given that this form of economic abuse appears almost common place, by definition, it cannot be. And yet it is abuse and these victim-survivors have suffered an economic (and emotional) detriment. Query how this achieves ‘fairness’.
The concern is that impact of domestic abuse, be it physical, emotional and/or financial is not fully understood. Judges are encouraged to ‘actively case manage’ at the First Appointment, which can lead to ‘conduct’ being summarily determined and struck out as an issue to be litigated at a 30-minute hearing. Again, does this achieve ‘fairness’? It may be that some courts are now approaching this issue in an overly restrictive way.
Resolution is clear that the current approach of the courts to s.25(2)(g) leads to unfair outcomes for some victim-survivors of domestic abuse. The report states that professionals are concerned that the current barrier is dissuading parties from pursuing conduct when it would be perfectly proper for them to do so and invariably lead to a better outcome.
Whilst the findings in the report are not surprising, they provide incisive focus on areas for potential reform. Deficiencies in the current system which are identified include: underfunding of QLRs, the accessibility of legal aid and making this financially viable work for solicitors, and the LSPO criteria in Rubin not being fit for purpose by failing to protect the financially vulnerable.
Procedural reform is also proposed to tackle non-disclosure at the outset and recognition that NCDR may not always be appropriate or safe, with a recommendation that domestic abuse constitutes a valid exemption from the same, if sought. Improvements on applications to determine MPS/interim financial arrangements, a swifter process to finalise awards, changes to enforcement and expanding the use of costs orders are all proposed as new weapons in the court’s armoury to combat abuse.
The aim of the recommendations is to reduce the post-separation domestic abuse, from the point of separation until the parties’ finances are resolved by implementation of the final order. They are, Resolution says, the ‘building blocks for ongoing and future policy development’. Importantly, the need for ‘cultural change’ is recognised and supported by the Law Society, FLBA and numerous other stakeholders.
The Law Commission’s scoping report into possible reform of s.25 and the research findings of the ‘Fair Shares?’ report (about the impact of domestic abuse on financial remedies) are due to be published shortly. It remains to be seen how much of this ‘cultural change’ is now put into practice.
