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Olivia Piercy and Anita Mehta consider abuse in divorce settlements in Today’s Family Lawyer

  • February 08, 2024
  • By Jasmin Bice

Olivia and Anita’s article was published in Today’s Family Lawyer, 8 February 2024, and can be found here.

Considering abuse in divorce settlements

In respect of financial remedies cases, Section 25(2)(g) of the Matrimonial Causes Act 1973 specifies that a parties’ conduct, that is not inequitable to disregard, is one of the relevant considerations for the courts when exercising their distributive powers.

The modern approach to conduct was set out by Mostyn J in OG v AG[1], which set out the four distinct scenarios in which conduct rears its head in financial remedy cases[2]:

  • gross and obvious misconduct meted out by one party against the other;
  • add-back;
  • litigation misconduct;
  • drawing adverse inferences;

Those four categories were endorsed in Tsvetkov v Khayrova, where Mr Justice Peel, also clarified:

  1. that to meet the high hurdle of conduct, that is not inequitable to disregard, the conduct must have a financial impact, but that impact does have to be financially measurable; and
  2. the procedure when a party is pleading conduct. This includes his view that the Judge can make a case management decision at the FDA that a party is not allowed to pursue a conduct case if the Judge considers that the allegations would not cross the threshold of being inequitable to disregard, or if the allegations once found would not have a material impact on the outcome;
    The Family Court has come a long way in its approach to domestic abuse when considering the appropriate arrangements for children. The decision in Re H-N[3] marked a key development in the understanding of coercive and controlling behaviour in private children cases; clarifying what amounts to domestic abuse, the impact of coercive and controlling behaviour and how the Court should approach the history between the parties. There seems to be a disconnect between that understanding, and the FRC authorities where the examples of personal conduct that cross the threshold are at the extreme end of the spectrum, but are also narrow in terms of the types of abuse that are capable of being recognised, for example financial (draining funds from the family resources[4]), or physical (attempted murder[5]).

The Fair Shares Report[6] revealed that domestic abuse may deter a victim from pursuing and receiving child maintenance, spousal maintenance, or even just the capital division. These are all issues that the FRC, and the Law Commission in their current work, will have to grapple with.

Resolution has recently opened a survey to understand what professionals working in Family Justice think about these issues (the survey seeks the views of not just lawyers but also legal executives, financial planners, mediators, etc). The link to the survey is here and it should take no more than 5 minutes to complete: https://www.smartsurvey.co.uk/s/EAWPsurvey/. Please share your views with us.

Written by Anita Mehta (a barrister at 4PB) and Olivia Piercy (a solicitor at Hunters Law LLP)

[1] OG v AG [2020] EWFC 52 [72] [2] Supra note 2, [34]-[40] [3] Re H-N and Others (Children) (Domestic Abuse: Finding of Fact Hearings) [2021] EWCA Civ 448
[4] DP v EP (Conduct: Economic Abuse: Needs) [2023] EWFC 6
[5] H v H (Financial Relief: attempted murder as conduct) [2005] EWHC 2911 (Fam)
[6] The Fair Shares Report; Sorting out money and property on divorce

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