Not my area…

Money lawyers may dismiss what follows as the deranged ramblings of a mere children lawyer, who rightly gave up money work as ‘too hard’ – but hear me out…

I spent a large chunk of last week listening to – and live tweeting – the conjoined domestic abuse appeals heard by the Court of Appeal on Tues-Thurs. Now this is not the first time I’ve thought about the implications of domestic abuse across the broader spectrum of Family Court work and beyond my little niche, but it has given rise to some musings about where we are at in terms of their impact on financial remedy specifically. These are not fully thought through proposals or anything, just some queries I’m throwing out for discussion. I think we maybe need to ask ourselves some questions, though I don’t profess to have all the answers. It’s been a while since I’ve done financial remedy work, and I may be out of touch.

So, things like PD3AA on vulnerable witnesses ostensibly applies to all types of family proceedings where there is a vulnerable witness, though I’m not sure how often it is deployed in such cases, in particular how often it is utilised in cases where there is a background of domestic abuse (alleged or proved), perhaps beyond the occasional screen.

PD12J however, the detailed guidance on dealing with domestic abuse – sits under Part 12 of the rules and, as such, applies only to Children proceedings.

It’s easy to forget that domestic abuse can hold relevance for two primary reasons in proceedings :

  • because of its impact on participation and best evidence
  • because it may be relevant to the substantive decision e.g. in children cases it means there is a risk to be managed

The first basis is clearly relevant in any sort of family proceedings. Where there are children there will likely have been some consideration of the issues in the context of the children case, something will have been committed to writing, perhaps there will be findings. But in many cases that is not the case – either the children are adult or there are none. How then does the court address, or even become aware of those issues, particularly where many participants in proceedings will be in person? As far as I’m aware there is no equivalent process to the C1A where a participant is asked at the point of issue whether or not there is a background of domestic abuse – meaning that the ‘red flags’ about the need to deploy PD3AA may not go up for the judge. The only place someone might deposit such matters is in the ‘conduct’ box on Form E.

I wonder if our culture of trying to avoid the blame game in money work might be impacting on this : what do I mean? Well, in financial remedy proceedings the court is directed by statute not to consider ‘conduct’ unless it would be ‘inequitable’ to disregard it (s25 Matrimonial Causes Act 1973). That means that judges are very reluctant to hear about allegations of domestic abuse, because they are generally not going to affect the outcome. Even where conduct is initially raised, judges are often at pains to explain this bit of the law to litigants, explaining that bad behaviour within relationships is sadly commonplace and the decision is not likely to depend on such issues. And if these issues aren’t going to affect the outcome there is of course no incentive for them to be set out in writing (indeed there is a positive discouragement or prohibition on doing so) , in order to alert the judge to the potential participation implications – or the substantive relevance of the alleged behaviour.

On top of that is the long running – and entirely sensible – campaign to remove fault from the divorce stage of proceedings more generally (ultimately successful).

But what if domestic abuse is relevant not just to participation (though that is important in itself), but to the substantive matters?

  • What if there has been financial control? What if other forms of control are now being expressed through the proceedings instead?
  • What if the control is continuing through the proceedings, unnoticed by the court, through persistent non-disclosure or vexatious but apparently reasonable requests for further information or by ramping up legal costs that a perpetrator knows the victim can ill afford until she is left acting in person, ground down and demoralised?
  • What if the control and abuse has eroded the victim’s self confidence, negatively impacted her capacity to support herself independently through an impact on her career?
  • What if the impact on the child(ren) means that there is justification in the victim staying at home, reducing hours or taking a less challenging role, to enable them to support the childrens’ wellbeing, therapy, recovery rather than maximising earning potential?
  • What if the behaviour has had such an enduring impact on the victim, even if non-physical in its form, that it would be unfair to ignore it?
  • What if there is a particular pressing need for the shape of any order to be crafted so that it ensures financial separation from the perpetrator so that the abuse through financial control can end?

One might say that my asking these questions is in tension with the no fault ethos. I don’t think it is. Firstly, it is important to distinguish between bad behaviour (which most relationships do involve at one time or another, in different guises and to differing degrees) and abusive behaviour which has a relevant impact on participation or financial matters. But secondly, a re-focusing upon relevance through impact was a recurrent theme in the domestic abuse appeals last week, and it seems to me that there is probably room for more thought about how we square the presumptive bar on the consideration of ‘conduct’ generally with the need to obtain sufficient information about allegations of abusive behaviour to properly inform the court both in terms of case management and possibly outcome. I suppose what I’m asking is : how does a judge know whether its inequitable to disregard conduct in the form of domestic abuse if the process squashes any mention or exploration of it systemically? And how easy would it be for a victim of such abuse to be heard on such issues? (particularly given all the pressures such victims will often be under, both financial and otherwise, and often without legal representation).

I suspect that at present the procedural framework for financial remedy proceedings may render judges oblivious to much of what may be going on under the surface. Particularly if the Court of Appeal adopts some of the arguments made last week about the Article 6 duties of proactive enquiry and case management around potential abuse (including in circumstances where not all victims are even aware that what they have gone through is abuse), then as a matter of principle those duties ought probably to extend to other types of proceedings – even where there is no relevant child of the family to consider under s25.

It might be that my worries about domestic abuse not being properly picked up and handled in the financial remedy sphere are unfair and unfounded. But in the context of so much evidence emerging of how we don’t always get it right in the children sphere even where it’s obviously pretty central, and knowing that there are similar personnel and all the same pressures on resources, I think it’s a valid question to be asking, even if the answer that comes is ultimately reassuring.

It’s also not Just about a fair procedure. As in the children sphere we do need to ask ourselves some searching questions about attitude. Think about Moor J’s remarks in MAP v MFP about a wife who sought an add back in respect of funds spent by her husband on cocaine and prostitutes – well, he said ‘since this was part of H’s flawed character and a spouse must take their partner as they find them, this could not be said to be wanton either & would not be added back’.

Now you can argue about whether to see the Husband’s behaviour in that case as an affliction or as merely evidence of him being a bit of a sh*t, but imagine if that approach were applied to a case of domestic abuse. A cynic might say it amounts to little more than the court shrugging its shoulders and saying ‘well, you should choose your husband’s more carefully love’. I would say that whilst domestic abuse may be a character flaw, it is still abuse, and the court should where relevant factor in the impact of it on the proceedings and the fair financial resolution. Not by way of punishment for bad behaviour, but in recognition of impact.

In part this post was triggered by me reading  some guidance offered by a lawyer and others in a newspaper advice column, which suggested that conduct was something that might be relevant in the case. I queried whether that would really be something that would be run – or perhaps that was likely to be helpful to run – but then began to wonder whether it was really right that we squash these noises about domestic abuse because of our culture of avoiding conduct and blame. From the replies I got I know I’m not the only lawyer who is being pulled in two directions by these issues, but I’d be really interested to know whether these are topics of active re-appraisal amongst financial remedy specialists?

I shall now retreat to my bunker and await a general drubbing for sticking my oar in to a field I know nowt about…

10 thoughts on “Not my area…

  1. As a DV victim, I know a lot about domestic abuse as it pertains to the adult victim and to the child as victim. Abuse by financial control and victimisation is crucial to the DV and underpins the ability of the perpetrator to maintain the control and perpetrate abuse, and, worse, to perpetrate abuse and control of the victim, even after the victim ends the relationship.

    It’s a method of instilling fear in you to try and stop you leaving the relationship in the first place. After you have left, usually by which time you will be penniless anyway, it’s the way the abuser still seeks a measure of control over the ‘relationship’ which (oft-times) he/she thinks he/she still has with you.

    Even if it is only achievable by, as you say “ persistent non-disclosure or vexatious but apparently reasonable requests for further information or by ramping up legal costs that a perpetrator knows the victim can ill afford until she is left acting in person, ground down and demoralised?” Or as in our case, withholding child support for two years until you raise this in court as an issue during one of the FC hearings and amazingly the same afternoon after court you get the arrears actually paid voluntarily by bank transfer!

    It is after actual violence, the prime strategy by which an abuser seeks to not only continue to control you, but to actively harm you, with the aim of making you so desperate and ground down that you simply cannot function normally.
    This in their eyes, when done through a FC setting or procedure, is the punishment you deserve, being extended, for you having the temerity to leave them.

    I particularly remember a phone call after the breakup of my own violence relationship, when he said “ I will force you and X [the child] out onto the street without a penny.” This was after he had emptied all the money out of our joint bank account BTW.

    Domestic abuse isn’t only about being used as a punch bag or strangled till you pass out…..

    • ^ There you go, that’s exactly what happens when you bring DA into the equation and allow “blame”. Witholding child maintenance? That’s what the CMS is for. That’s what happens when the parents aren’t married, why should it be any different in divorce.

  2. ” …the deranged ramblings of a mere children lawyer …”

    I’m afraid you underestimate yourself. Your points are well thought out and rightly need to be brought into the equation and discussed. It’s not going to be easy.

    There are many abusive relationships which end in divorce and the exploration of such being resolved on a ‘no blame’ principle in some ways undermines the concept of justice, particularly when there is financial abuse; the hiding or none disclosure of assets for example.

    The poor conduct of a partner: would it even be possible to have a Finding of Fact to establish this and then move on to a ‘no blame’ divorce or points based system to establish the % (value?) of ‘blame’?

    Minefield.

    • I don’t propose to try and answer my own questions – but for my part my initial thought is that a distinct fact find would neither be necessary or desirable in most cases – there isn’t the same need for a 2 stage process as there is in children matters where you need facts to then assess risk. But I’ll leave that to others to ponder!

  3. I was wondering how far through your post I would have to read before the inevitable bias would show through, not far it seems:
    “ramping up legal costs that a perpetrator knows the victim can ill afford until she is left acting in person”
    “What if the control and abuse has eroded the victim’s self confidence, negatively impacted her capacity to support herself independently through an impact on her career?”
    You just can’t help it. There is a deep seated and systematic bias throughout the judiciary and legal profession which does untold harm to children.
    The idea in the modern world that one party to a divorce should have to continue to pay the other party to maintain their lifestyle ad infinitum after the marriage has ended is anachronistic. Allowing domestic abuse as a reason to adjust the outcome will have the same effect in financial remedy proceedings that it’s had in Children Act proceedings where 62% of cases in 2017 featured allegations.
    Your proposal is reckless and will have a devastating effect on the majority of cases and parties.
    The only ones who can possibly benefit are the lawyers.

    • Brian, I’ve made no proposal. I’ve asked a series of questions to prompt discussion.
      If my use of the female pronoun is what is bothering you, this is a conversation we’ve had before. Of course all I write could well apply in reverse, and no doubt does in some cases, but the predominantly more vulnerable partner financially is most likely to be the female (for reasons I need not explain), and allegations of abuse are also more often made by women.
      All of which is entirely separate to your complaint about divorces being seen as a meal ticket for life – I am not talking about that but about the impact of abusive behaviour and whether / how it should be considered.
      But you know all that.

  4. It’s no wonder marriage is dying institution, there is literally no advantage for men to get married. Any man who wants to get married these days needs his head examining.
    The Government recently rejected the idea of giving those who contracted Covid and payment of £500, because it would create “perverse incentives”.
    What you’re suggesting will do exactly the same, create perverse incentives to make allegations, or even to invent conflict so the police can be called to provide a record for the financial remedy proceedings.
    Men aged 45-49 have the highest suicide rate, which is at least 3 times higher than women, what do you think is causing that? It’s not because their happily married, living with their kids and their lives are going great!
    Divorce rates are dropping, but only because marriage rates have been falling since the ’70s. The most interesting data is the divorce rates between same-sex couples. 56% of same-sex marriages are between women, but 75% of divorces of same-sex couples are women. Women initiate divorce more often, even when they’re married to another woman!

  5. One area I’ve seen ‘financial abuse’ is in the court process combined with legal aid. Here in NZ legal aid is often available to the mother but not the father. It cuts out at a very basic $35,000 a year.
    As a result I’ve seen cases where the ‘aided’ party will try to stretch things out as a way to get the other party to give up by pricing them out. Though you could term this ‘administrative abuse’.
    I’ve also seen all the situations that Familoo has described.
    Having said that in the region that I live there are excellent Judges who are quick to curtail this sort of behaviour. It’s improved greatly over the last 10 years.

  6. Conduct to be considered again by the back door? No thanks.

    It would be particularly wrong for an alleged abuser to be at risk of having the order made harsher to reflect his (usually his) decision to resist the claim. That is what courts are for. If he abuses process in doing so the remedy is in costs.

  7. See Finch -v- Baker on Bailii today where a wife-appellant sought to bring in conduct and especially:

    Determination

    As referred to above, as part of his case Mr Evans sought to raise the husband’s conduct and the nature and extent of his contributions on the basis that they are “indivisible”, are part of “the history of the case” and that the court cannot “ignore the effect” of the husband’s conduct and his negative contributions.

    With all due respect to Mr Evans, this was a hopeless submission. Roberts J refused the wife permission to appeal on these grounds and it is simply not open to her to seek to reargue them in this appeal. As was made clear in Miller v Miller; McFarlane v McFarlane [2006] 2 AC 618 the relevance of conduct is to be determined in accordance with the provisions of section 25(2)(g) of the 1973 Act. As Lord Nicholls said, at [65], it cannot alternatively be brought into account “under the guise of having regard to all the circumstances of the case”; see also Lady Hale at [145] and Lord Mance at [161]-[164].

    Equally, it is clear that, as submitted by Mr Hyde, to seek to allege that one party has made a “negative contribution” is also no more than an attempt to argue conduct under a different guise. Wilson J (as he then was) described the expression “negative contribution” as an “unhelpful oxymoron” and made clear that, if a party sought to assert that the other party had behaved in a way which it would be inequitable to disregard, the allegation should be put in those terms, namely under section 25(2)(g): W v W [2001] Fam Law 656. This was endorsed in Charman v Charman (No 4) [2007] 1 FLR 1246, at [72], by Sir Mark Potter P giving the judgment of the court:

    “[72] The inquiry required by the principle of sharing is, as we have shown, dictated by reference to the contributions of each party to the welfare of the family (s 25(2)(f)); and, as we make clear in para [85], below, the duration of the marriage (the other half of s 25(2)(d)) here falls to be considered. Also conveniently assigned to the sharing principle, no doubt dictating departure from equality, is the conduct of a party in the exceptional case in which it would be inequitable to disregard it (s 25(2)(g)). Mr Singleton argued to the judge that the husband’s generation of substantial wealth was not only a special contribution on his part to the welfare of the family but conduct which it would be inequitable to disregard. We think, however, that it is as unnecessarily confusing to present a case of contribution as a positive type of conduct as it is to present a case of conduct as a negative or nil type of contribution: see W v W [2001] Fam Law 656.”

    Of course you need to read the whole judgment. But unless the Supremes say otherwise conduct is still out – and so it ought to be.

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