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Olivia Piercy calls to review the law on ‘conduct’ in financial remedy cases in the Financial Remedies Journal

  • October 27, 2023
  • By Jasmin Bice

Olivia and Anita Mehta‘s (4PB) article was published in the Financial Remedies Journal, 18 October 2023, and can be found here

Is It Time to Consign the ‘Gasp’ Factor to the History Books?

https://www.bailii.org/nie/cases/NIHC/Master/2023/6.html

In the private law arena, the Family Court has taken huge strides forward in its understanding and approach to coercive control, following the landmark case of Re H-N and Others (Children) (Domestic Abuse: Finding of Fact Hearings) [2021] EWCA Civ 448. We know now that domestic abuse and coercive control is linked with poorer financial outcomes for victim-survivors and their children, and that the harm victim-survivors experience is caused by coercion and control – not only by the severity of the injury from a specific incident.

Section 25(2)(g) of the Matrimonial Causes Act 1973 requires courts to consider ‘the conduct of each of the parties, if that conduct is such that it would be inequitable to disregard it’. The Senior Courts have been tasked with assessing what conduct satisfies the statutory test. When it comes to domestic abuse, the court has set the bar extremely high, for example, at attempted murder with obvious financial consequences,¹ or stalking and rape;² effectively where there are findings of extreme physical abuse often with criminal convictions. We ask whether that is correct, given the Family Court’s increased insight into the nature and extent of harm caused by coercive control.

Seales v Seales

The judgment from Seales v Seales (Ancillary Relief: Murder and Coercive Control as Conduct) [2023] NI Master 6, heard by Master Bell in Northern Ireland, has just been published. The Master found all four elements of the pleaded conduct proved. Firstly, during the marriage, husband had killed Mr Philip Strickland and was in prison for his murder. Secondly, his coercive control and other domestic abuse of his wife was significant, and the impact on her health and wellbeing was profound and robustly evidenced. The third and fourth elements of abuse occurred during the proceedings with the husband transferring a property to his sister in breach of an undertaking to the court and using delaying tactics which had increased wife’s costs. The Master found all counts proved and found that the domestic abuse and the husband’s conviction had a measurable impact on the wife’s earning capacity. The Master found this a paradigm example of a case where the husband’s conduct was so outrageous that it would be utterly inequitable to disregard it. That is hardly surprising as the facts of the case are extreme. However, the Master’s comments about coercive control may indicate the start of a change in approach. The Master said there is ‘a high threshold for conduct … enshrined in legislation’ but ‘expressions used by lawyers, such as “gasp factor”’ overstate the position, ‘raising the high threshold above what Parliament actually intended’. The Master went on to say there is a ‘clear obligation on the court … to recognise cases of coercive control because it would be inequitable to disregard [it]’. He said the risk of courts being asked to ‘delve into factual situations that are not “obvious and gross” … should not be overstated’, because the courts can make costs orders when cases are not supported by evidence and because ‘the genuine cases of coercive control will frequently be distinguishable through the consideration of medical or psychological evidence from reputable expert witnesses’. The Master concluded that this is a gendered issue and that ‘to exclude genuine cases of coercive control from amounting to conduct in ancillary relief proceedings would be to fail to do justice to women for it is women who are disproportionately the victims of such conduct’.

The court is well equipped to identify the genuine cases of coercive and controlling behaviour. In the case of Traharne v Limb [2022] EWFC 27, Sir Jonathan Cohen said that the existence of coercive and controlling behaviour could undermine a post nuptial agreement, but he did not find that there had been such behaviour, as asserted by wife, in that case. The judge found wife’s costs expenditure was ‘woefully excessive’ and her conduct argument misconceived. Upon calculating the lump sum, the judge ordered wife be left with an outstanding liability of £70,000–80,000 to pay to her solicitors, and said, ‘that W is left with a costs bill to pay is entirely the result of her prodigal expenditure on costs and her approach to this litigation’.

The gasp factor

The ‘gasp factor’ was proposed by Mr Mostyn QC, as he was then, in the case of S v S (Non-Matrimonial Property: Conduct) [2007] 1 FLR 1496, as a test for the court to distinguish between conduct which was inequitable to disregard, and the frequent fighting and quarrelling that happens in an unhappy marriage. In that case, Mr Justice Burton made findings about twenty-two incidents of conflict and domestic abuse over a six-year period. The judge found each of the parties had lashed out, thrown things, shouted, and hit each other. Using what is now considered an outdated approach to fact-finding for domestic abuse, the judge analysed each incident individually, determining what had happened and who had started it. Wife sought findings about what occurred on the final incident, which led to the husband’s conviction of ABH; she argued that incident was conduct that it would be inequitable to disregard. It was husband who invited the court to determine what had occurred on all the previous incidents, on the basis the court would then find that he was no more to blame than wife.

The judge found husband was domineering, demanding and a cold fish. He found wife was quick-tempered and hyper-emotional. The judge found that both parties were to blame for the various incidents and conflict. We now know that by focusing on the fact that there had been physical acts of violence on both sides and the specific incidents, the judge failed to assess whether there was a pattern of coercive behaviour, which put one party substantially under the control and in fear of the other. The participation of both parties in incidents, and ‘mirror allegations’, does not negate the possibility that there was also a harmful power dynamic, exerted by one party, to the detriment of the other. We cannot know if a dynamic of coercion and control existed in the marriage in S v S, as the facts were not analysed in that way, but it may be said there are indications. Husband was 20 years older than wife, and an equity partner in the firm where she was the trainee. He was a wealthy, successful man, who had previously been married for 23 years; he had clear expectations of his young wife. He had kept a diary about each of these events during the marriage. These facts may point to where the balance of power fell.

During the final incident between the parties, wife was knocked to the floor as she was trying to hold the bathroom door shut. Wife hit her head on a pole and received what was called a superficial cut that oozed, not poured, blood. Husband, in what the judge called an ‘absolutely furious state’, hit her several times on the back of the head as she lay on the floor. He then tried to force the engagement ring from wife’s finger. Mr Justice Burton, found this incident and the history, left him with a ‘gulp factor’ not a ‘gasp factor’, and therefore found it did not amount to conduct that it would be inequitable to disregard. It would be interesting to know, sixteen years later, whether Mrs S considers her experiences in this marriage shaped her future psychology, well-being, and most pertinently, her earning capacity. Coercive and controlling behaviours can be subtle and insidiously harmful. The impact to a person’s life, confidence, independence, earning capacity and health can be devastating and irreparable.

We agree with the approach of Master Bell and suggest the ‘gasp factor’ may be past its sell by date. It applies an outdated understanding of domestic abuse; one where there is a scale, with serious physical violence at the extreme end, and emotional abuse at the lesser end. The understanding of the Family Court in the private law arena has developed beyond this way of thinking. In Re H-N the court set out that:

‘coercive and/or controlling behaviour by one party may cause serious emotional and psychological harm to the other members of the family unit, whether or not there has been any actual episode of violence or sexual abuse. In short, a pattern of coercive and/or controlling behaviour can be as abusive as or more abusive than any particular factual incident that might be written down and included in a schedule in court proceedings.’

The FRC must surely now apply this same understanding of domestic abuse, when considering whether disregarding it would be inequitable.

Financial consequences of conduct

In OG v AG [2020] EWFC 52 (29 July 2020), Mr Justice Mostyn identified four distinct scenarios, where conduct might arise. This article is concerned with the first category identified, which the judge described ‘as gross and obvious personal misconduct meted out by one party against the other, normally, but not necessarily, during the marriage’. The judge said ‘the authorities clearly indicate that such conduct would only be reflected where there is a financial consequence to its impact’ and that the conduct must be ‘financially measurable’. We now know that coercive control and domestic abuse is linked with poorer financial outcomes for victim-survivors. In some extreme cases, the victim-survivor may be unable to work again, thus making the financial consequences measurable, but most of the time it is just not going to be that clear.

However, in DP v EP (Conduct; Economic Abuse; Needs) [2023] EWFC 6, Her Honour Judge Reardon addressed this restriction, albeit in the context of economic abuse. The judge found ‘too narrow an interpretation of s 25(g) would render the provision nugatory’. In that case, wife had over several years, removed assets from the family pot to put them out of reach of husband. Husband was vulnerable as he was illiterate and entirely reliant on wife to manage his and the family’s finances. Wife took advantage of her dominant position. Some of wife’s conduct was easily quantified, but some could not be. The judge pointed out that where the consequences of conduct are truly financially measurable, they will likely have been considered under either s 25(… (resources) or s 25(b) (needs). She went on to find that:

‘there must be some scope for conduct which has had consequences to be reflected in the ultimate division of assets, even where those consequences are not financially measurable. In this case, there has been a negative impact on H’s overall financial position, even if it is impossible to determine what that has been.’

Mr Justice Peel reached the same conclusion in Tsvetkov v Khayrova [2023] EWFC 130. The judge clarified that a party asserting conduct must prove, (1) the facts relied on, (2) that the facts meet the high conduct threshold and (3) a causative link between the facts and financial loss, even if that loss is not easily quantifiable. When it comes to economic abuse, litigants should be able to meet this test. The court is well placed to analyse the financial impact of what property has been accrued (or not) during the marriage, for example, by coerced debt, or attempts to hide or remove assets from the matrimonial pot. However, unless the abuse has taken the form of coercing the victim-survivor to abandon a career or education, it is not clear what evidence a victim-survivor could file, in relation to other forms of coercive control, to prove the causative link. Coercive and controlling behaviour can erode self-esteem, mental and physical health, isolate victim-survivors from their support network and cause them to lose opportunities, skills, confidence and their professional network or the chance to build one. The financial impact of coercive control can be profound and undeniable, yet unquantifiable, and difficult to isolate.

This is not a call for the ‘arbitrary fining of a party for immoral conduct’. The writers suggest that awards could be adjusted either:

  • As part of an analysis of relationship-generated disadvantage, which Baroness Hale identified as part of the rationale of distribution in Miller/McFarlane [2006] UKHL 24; [2006] 2 AC 618; or
  • as a potentially magnifying factor when considering [a party’s] position under the other subsections and criteria, as per Coleridge J in H v H [2006] 1 FLR 990.

In Miller/McFarlane, the Baroness said:

‘[140] A second rationale, which is closely related to need, is compensation for relationship-generated disadvantage. Indeed, some consider the provision for need is compensation for relationship-generated disadvantage. But the economic disadvantage generated by the relationship may go beyond need, however generously interpreted.’

The issue with this analysis is the availability of evidence to prove the marriage has caused the economic disadvantage. It is clear from Waggott v Waggott [2018] EWCA Civ 727 (11 April 2018) that the court cannot embark on an analysis of how a party’s earning capacity might have developed absent the marriage, or how the marriage has impacted on a party’s earning capacity, so how is the disadvantage to be evidenced? Moreover, the cases that are easier to quantify may not be the ones where the conduct has caused the most significant financial detriment. Take, for example, a young woman who is married at eighteen years old with no career to speak of, but then experiences severe coercive control for twenty years, in comparison to a woman who marries at forty years old, and experiences coercive control for a few years, during which she loses her job. An analysis based on relationship-generated disadvantage could lead to a greater award in the second set of facts, whereas the impact of the coercion and control on the woman’s earning capacity may be far greater in the first.

The alternative analysis found in H v H, explicitly states that the court should not be punitive or confiscatory for its own sake, but conduct should be used as ‘a magnifying factor when considering the wife’s position under the other subsections and criteria. It is the glass through which the other factors are considered’. In that case it meant the judge placed the wife’s needs very much higher than the husband’s. This may be the preferred analysis in cases of coercive control. Lord Justice Moylan has made clear (in respect of other forms of conduct) that the court must be entitled to prioritise the needs of the party who has not been guilty of such conduct, and this may result in the other party’s needs not being satisfied (TT v CDS (Rev 1) [2020] EWCA Civ 1215 (18 September 2020)). This could be relevant in cases of serious coercive control.

Working party

Crisp, Hunter and Hitchings report that domestic abuse features in one-third of contested cases, and one-quarter of consent orders. This article is not arguing to open the floodgates. However, this jurisprudence needs to be revisited with the benefit of our now more nuanced understanding of domestic abuse, to consider again what conduct it is inequitable to disregard. The writers do not claim to have the answers to these questions but would like to be part of a discussion about how, and whether, coercive control and other forms of domestic abuse should be considered, in financial remedy cases. As Master Bell commented in Seales v Seales:

‘the implications of criminalising coercive control … are only now beginning to seep into legal culture… An important issue, however, is what is the effect of this kind of abuse within the field of ancillary relief. There appears to be an absence of caselaw on this matter.’

Any guidance would surely be helpful, particularly now that the judges may determine whether allegations can amount to conduct at the First Appointment.³

We are forming a multi-disciplinary working party, led by Resolution, to look initially at the treatment of economic abuse within financial remedy and in respect of cohabitees. Our intention is to later consider whether, and if so how, other forms of coercive control should be addressed in financial remedy proceedings, as explored in this article. We plan to update the readers of this journal within the next couple of months about the steps we have taken and to call for other interested parties who wish to be part of this discussion.

¹ H v H [2005] EWHC 2911 (Fam), [2006] 1 FLR 990.
² S v S (Conduct: Pensions) [2022] EWFC 176.
³ As required by Mr Justice Peel in Tsvetkov v Khayrova.

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