Introduction

This blog piece has been timed to coincide with the publication, on 8 October 2024, of the report by Resolution on ‘Domestic Abuse in Financial Remedy Proceedings’. This groundbreaking report delves into the interplay between domestic abuse and the treatment of finances on separation and divorce/dissolution (hereinafter ‘divorce’), and how domestic abuse is addressed in other financial proceedings.

The report is the culmination of an 18-month project which originated in mid-2023 with the formation of a Resolution multi-disciplinary working party on this issue. The working party was convened following the Domestic Abuse Act 2021 (DAA 2021) coming into force and the significant advances in the Family Court’s understanding of domestic abuse in recent years, particularly in light of the landmark cases of Re H-N and Others (Children) (Domestic Abuse: Finding of Fact Hearings) [2021] 2 FLR 1116 and Re K [2022] 2 FLR 1064 in relation to children proceedings.

Chaired by Olivia Piercy (Hunters Law) and Anita Mehta (4PB), the working party comprised specialist family law solicitors and barristers, representatives from the Family Law Bar Association (FLBA), family law academics, independent financial advisers and domestic abuse charities. The working party commissioned a six-week survey in January 2024 to understand the reported incidence of domestic abuse, and to consider what impact any abuse has on outcomes. The survey was open to all family law professionals. It was distributed by Resolution and the FLBA to all their members, and was widely shared on social media. The survey also asked questions about proceedings involving cohabitants and separated parents.

In March 2024, a follow-up questionnaire was sent to the professionals who had volunteered in the survey to share further insights. This follow-up questionnaire was also open for six weeks, and coincided with the lead up to the changes to the Family Procedure Rules 2010 (the FPR) relating to non-court dispute resolution (NCDR) which came into effect on 29 April 2024.1

The results of the survey and follow-up questionnaire are in the report. The results are staggering and make for sobering reading. The deeply personal testimonials given by victim-survivors of domestic abuse, and from the lawyers who represent them, underline the pressing need for Resolution’s proposals for legal and procedural change to better meet the needs of victim-survivors seeking the resolution of their finances on divorce.

This research was followed up with a workshop at the National Resolution Conference in May 2024 involving more than 120 family law professionals who were invited to consider what changes would improve outcomes for their clients who are victim-survivors. An Economic Abuse Summit was later convened in June 2024 to consider proposals for change and to assist Resolution in determining its recommendations. The Law Commission was in attendance as an observer.

Results of the survey and questionnaire

In the report, the term ‘domestic abuse’ is used to refer to all forms of domestic abuse, as defined by s 1 of the DAA 2021. Pursuant to s 1(3) of the DAA 2021:

‘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 (see subsection (4));

(e) psychological, emotional or other abuse;

and it does not matter whether the behaviour consists of a single incident or a course of conduct.’

Economic abuse is defined at s 1(4) of the DAA 2021 as ‘any behaviour that has a substantial adverse effect on the [victim]’s ability to (a) acquire, use or maintain money or other property, or (b) obtain goods or services’. A failure by a party to comply with their obligation to give full and frank disclosure, refusal to provide sufficient (if at all) interim financial provision, and withholding family funds in order to prevent the other party from being able to access legal advice/representation, all potentially amount to economic abuse.

The result of the working party’s survey, which attracted 526 full responses – in our view a high response rate for a legal policy survey – revealed that c.80% of professionals believe that domestic abuse, and specifically economic abuse, is not sufficiently taken into account in financial remedy proceedings. The percentages increased when it came to unmarried families, with 85% stating that it is not sufficiently taken into account in Schedule 1 proceedings, and 87% stating it is not sufficiently taken into account in TLATA proceedings involving cohabitees.2 The responses indicated that regional differences did not exist.

Professionals also voiced overwhelming concern about the lack of legal aid for victim-survivors and their ability to access funds (especially family money) to pay for legal fees with 90% responding that there was insufficient access to legal aid for victim-survivors. Failure to disclose assets, delaying tactics, and breaching court orders were also persistent issues of concern.

Strikingly, there was a significant disparity between how often respondent professionals identified domestic abuse (and specifically economic abuse) as an issue between separating couples when resolving their finances, and how often it was raised in court proceedings. This was perhaps not surprising, given the statutory test in s 25(2)(g) of the Matrimonial Causes Act 1973 (MCA 1973) that conduct should only be taken into account if ‘it is such that it would in the opinion of the court be inequitable to disregard it’ and in light of current caselaw.3

Recommendations

In its report, Resolution calls for a cultural shift from all family justice professionals to better meet the needs of victim-survivors of domestic abuse seeking the resolution of their finances on divorce. Much more must be done to prevent domestic abuse from being perpetrated post-separation, through negotiations and NCDR, during court proceedings, and after the conclusion of proceedings but before full implementation of final orders.

Resolution’s recommendations are as follows:

(a) The Family Procedure Rule Committee should consider changes to the Family Procedure Rules 2010 (FPR 2010) to ensure that parties are safeguarded from ongoing domestic abuse, to include consideration of an amendment to the overriding objective in Part 1 so that dealing with a case ‘justly’ in FPR 1.1(2) includes ‘ensuring the parties are safeguarded from domestic abuse’; an amendment to Part 9 so that every case management decision in applications for a financial remedy is conducted in a way that will safeguard the parties from domestic abuse; and whether the court’s case management powers can be better used where a party fails to provide disclosure in pre-proceedings correspondence or NCDR.

(b) It should be made clear as a matter of law that the duty of full and frank disclosure starts when parties start to engage in NCDR or negotiations (in other words, that this duty will usually start before any court proceedings).

(c) Where there is ongoing economic abuse by a party’s failure to disclose their finances within a reasonable timeframe,4 and/or a party does not have security that interim maintenance, bills associated with the family home or legal services payments are agreed (in cases where resources allow), and/or there are allegations of ongoing domestic abuse, the balance shifts away from any form of NCDR continuing (at least without directions from the court to ensure that full, frank and clear disclosure is provided timeously). Consideration of the option of NCDR should always involve robust and ongoing assessments of risk, suitability, and safeguards. Where an exemption from NCDR has been given by a mediator at a MIAM due to domestic abuse (a stringent test that mediators do not take lightly), Resolution seeks confirmation that the court will respect that decision and not re-traumatise victim-survivors by requiring them to explain again why they cannot participate in NCDR, or directing them to try NCDR again.

(d) The Institute of Family Law Arbitrators (IFLA) and the Lead Judges of the Financial Remedies Court should work with Resolution and others to develop an expedited procedure to convert financial arbitration awards, and agreements reached at private FDRs, into court orders so as to avoid delay.

(e) Lead Judges, in consultation with Resolution and others, should introduce amendments to the Financial Remedies Court Efficiency Statements to include specific reference to the need to ensure that financial remedy proceedings are not used by perpetrators to facilitate ongoing domestic abuse.

(f) Further consideration should be given to measures to help ensure that victim-survivors are financially supported between the time of separation, and the final outcome of a financial remedies application, including consideration of the need for a review of the law and procedure relating to interim financial remedies. This could include longer listings for a combined First Appointment and the hearing of an application for maintenance pending suit (MPS) and/or a legal services payment order (LSPO). Where this is not possible, any application for MPS and/or LSPO should be listed within six weeks.

(g) A review of the legislation relating to LSPOs should take place as soon as possible, to recognise that post-separation economic abuse may be in play to obstruct a victim-survivor of domestic abuse from accessing resources to obtain legal advice and representation. Pending this review, there needs to be greater awareness among the profession and the judiciary that where there are sufficient resources for both parties to be represented, but one party is being denied access to it for their legal fees and is forced into borrowing at a high rate of interest, this may well be symptomatic of an abusive dynamic.

(h) Financial thresholds and requirements for legal aid should be reviewed, so that victim-survivors can more easily access legal aid in financial remedy, Schedule 1, and TLATA cases. The capital and income thresholds should be increased so that the gap between victim-survivors who are eligible for legal aid and those who can afford to pay for legal representation privately is substantially reduced.

(i) Legal aid rates in these areas should also be increased to make it commercially viable for legal aid providers to act for victim-survivors.

(j) Lead Judges and the legal profession should co-operate to ensure that the consequences of any non-compliance with a financial remedy order should be decided at the time of the making of the order, especially if enforcement proceedings seem likely.

(k) The Government should implement, at the earliest opportunity, the Law Commission’s 2016 recommendations to extend existing methods of enforcement and introduce new types of enforcement orders.

(l) The Family Procedure Rule Committee should consider whether the rules in respect of costs orders could be amended to reduce abuse from the proceedings themselves. For example, the rules at FPR 28.3(7) could be amended to include a new subsection requiring the court to have regard to any use by a party of litigation, failure to provide financial disclosure or failure to engage in NCDR, as a form of domestic abuse, as defined in the DDA 2021, when considering the making of an order for costs.

(m) An explanatory Practice Direction should be issued, in consultation with Resolution and others, setting out the approach in financial remedy proceedings where there is ongoing, or where there are allegations of, domestic abuse. This should both clarify the current law around conduct, and improve practice and procedure to better protect victim-survivors.

Resolution is also supportive of the introduction of a procedure for a consolidated fact-finding hearing in cases before the Family Court if domestic abuse is likely to be a relevant factor in multiple proceedings (Children Act 1989, domestic abuse injunctive applications, and/or financial remedy applications (when sufficiently serious)). Such a procedure would ensure that victim-survivors are not re-traumatised by having to give their account on multiple occasions, and would also save costs and court resources.

Resolution is also clear that the current approach of the courts to ‘conduct’ under s 25(2)(g) of the MCA 1973 leads to unfair outcomes for some victim-survivors of domestic abuse. The report does not set out to achieve a final recommendation as to how to resolve that thorny issue, but affirms Resolution’s commitment to continue to consider the issue by liaising with a wide range of stakeholders, and by considering the developing research in this area from the Fair Shares? project5 and the work of the Law Commission into possible reform of s 25 of the MCA 1973, including the operation of ‘conduct’ as a factor to which the court must have regard when deciding financial remedies orders.6

Conclusion

Domestic abuse is indubitably vile and indefensible. There is increasing awareness of the incidence of domestic abuse, and its harmful and pernicious effects.7

The Resolution report voices a powerful call for change and poses pressing questions as to what we can do to ensure that victim-survivors are protected from ongoing domestic abuse, and that the outcomes they receive are fairer. Many will be watching keenly to see how this area develops, and the extent to which the recommendations in the report are carried forward. In the words of Resolution’s Chair, whilst we continue to ignore the elephant in the room, we fail to protect some of the most vulnerable litigants in the family justice system.8