Where the Family Courts consider domestic abuse it can include, but is not limited to, physical/emotional/psychological abuse, sexual violence and/or financial control between those aged 16+ who are or have been intimate partners or family members, regardless of gender or sexuality.
It can also be defined as including an incident or pattern of controlling and coercive behaviour.
Resolving financial separation in the context of domestic abuse can be very difficult.
The question often asked is will the presence of domestic abuse have any bearing on the overall financial award made in a financial separation from an abusive partner.
We will answer this question and will briefly explore the interaction between domestic abuse and financial separation.
How does the court approach the matter of financial division of assets in circumstances where there is domestic abuse?
It is a misconception that the court will automatically take a different approach to the financial division of assets in circumstances of domestic abuse.
As with all cases of financial separation, the court will take into account a range of factors that are listed at section 25 of the Matrimonial Causes Act 1973 (MCA 1973).
Regardless of whether domestic abuse has been alleged, these factors will still need to be considered.
Will the court specifically consider the presence of domestic abuse when making a financial award?
In accordance with section 25 (2) (g) MCA 1973, the conduct of each party constitutes one of the relevant factors that the court will consider when deciding on an appropriate financial award.
Incidents of domestic abuse and coercive control may in some circumstances fall within the ambit of qualifying ‘conduct’ and could therefore be considered by the court as a relevant factor that must be considered when determining an appropriate financial award.
However, this is not automatic, and it is important to appreciate that conduct will only be considered very rarely, even if allegations have been made to the police.
Will the presence of domestic abuse have any impact on the financial division of assets?
Although it is recognised that domestic abuse of any form is absolutely unacceptable, the law does not provide for domestic abuse perpetrators to be automatically financially punished by the court for their behaviour.
The extent to which domestic abuse will impact upon the financial division of assets is instead dependent upon the impact that party’s behaviour has on the factors listed at section 25 MCA 1973.
Also, although conduct is listed as a relevant factor at section 25 (2) (g) MCA 1973, as indicated above the conduct must be so severe that it would be inequitable to disregard it.
This is a high threshold to meet. As such, the reality is that only in cases of extreme domestic abuse will one party’s conduct have a notable impact on the overall division of assets.
That is not to say that there will be no cases where the impact abuse has had on one party’s income/earning capacity and or financial/coercive control has affected a party’s ability to move towards financial independence sooner.
Domestic abuse can have a real and serious impact on physical and mental health. In some circumstances, it might therefore be appropriate to argue that additional maintenance should be awarded to reflect the fact that returning immediately to the workforce is not a realistic expectation of someone in this situation.
The degree to which these arguments are applicable is of course entirely dependent upon the specific facts of the case and the circumstances of the abuse. It is important to take expert advice on individual situations.
How will the presence of domestic abuse impact on the type of award made by the court?
In accordance with section 25A of the MCA 1973, the court has an obligation in all cases to consider whether a clean break is possible, i.e.; whether it would be possible to sever all financial ties between the parties (except for any ongoing child maintenance obligations).
In cases where domestic abuse has been present, effecting a clean break where possible becomes even more important. Cutting financial ties is a mechanism of reducing the reliance and dependence on one party by the other party, and it prevents any opportunity for ongoing financial control. As such, if the assets of the case are such that spousal maintenance can be capitalised by way of a lump sum payment, the court might be more inclined to make this award in cases where there has been domestic violence.
How can a fair financial outcome be reached in circumstances of financial control?
It is often the case that one party is unaware of the true extent of their partner’s true wealth because they had no control over the financial arrangements during the relationship. Financial control is a recognised form of domestic abuse to no lesser extent than physical, emotional or psychological abuse.
The courts do not usually BUT THEY CAN take into account domestic violence, particularly where it
has affected a woman’s earning capacity or impacts
on her financially, for example if she has to lose her job as a result of physical or mental injury.
Without any understanding of the true assets available in the relationship, it is not possible to contemplate what might constitute a fair financial settlement following separation. As such, entering into any kind of financial discussions with a partner can understandably be a daunting experience for someone who has been subject to financial control.
However, the disclosure process during a financial separation exists in order to mitigate the impact of financial control when it comes to the division of assets. The financial disclosure process is a mechanism of ensuring that both parties’ finances can be understood fully and that all relevant documents belonging to each party’s financial position can be obtained.
If the parties do not agree to enter into this process voluntarily, financial disclosure will be ordered by the court once court proceedings have been issued. Each party has an ongoing duty of full and frank disclosure within court proceedings.
Financial disclosure usually takes place by way of Form E, where each party will be required to provide a summary of all their assets, liabilities, and income earned from all sources, wherever held globally.
Upon simultaneous exchange of disclosure, each party has the opportunity of raising questions relating to the other party’s information and can request further relevant financial information.
There are also court orders that can be sought to assist in obtaining this disclosure in circumstances where one party is refusing to provide the requested information.
How can we help?
We recognise that navigating a financial separation from your partner can be extremely difficult in circumstances of domestic abuse.
Please contact us on 01207,655178