Resolution’s report on domestic abuse in financial remedy proceedings

The need for courts to consider domestic abuse (including economic abuse) within private child law proceedings is entrenched within both case law and statue. In particular, the terms of Practice Direction 12J (PD12J) make it clear that the issue of domestic abuse must be considered at every hearing and that where findings of domestic abuse are made, any child arrangements order must take those findings into account. 

The question of how domestic abuse is (and should be) treated within financial remedy proceedings is much more problematic and is the subject of the Resolution report on domestic abuse in financial remedy proceedings, published on 8 October 2024. 

The situation

The need for such a report is, in my view, clear. As a practitioner within private child law and financial remedy proceedings, I have had many clients express confusion and frustration at the inconsistent manner in which issues of domestic abuse are treated within the two types of proceedings. The question is often asked of me (not unreasonably) ‘why is a finding of domestic abuse relevant to the time a child spends with a parent, but not to the distribution of their assets?’ My experience seems to be a common one: Resolution found that around 80% of professionals consider that domestic abuse, and specifically financial abuse, is not taken sufficiently into account in financial remedy proceedings. 

The reason for this is clear: the judicial interpretation of section 25(2)(g) of the Matrimonial Causes Act 1973 (MCA). That section provides that the court will have regard to ‘the conduct of each of the parties, if that conduct is such that it would in the opinion of the court be inequitable to disregard it’. Domestic abuse falls into the first of four categories of conduct identified by Mostyn J in OG v AG (Financial Remedies: Conduct) [2021] 1 FLR 1105 at [34], namely the “gross and obvious personal misconduct meted out by one party against the other, normally, but not necessarily, during the marriage.” 

The issue of conduct has been considered by Peel J, the National Lead Judge of the Financial Remedies Court twice in the last year, namely in Tsvetkov v Khayrova [2024] 1 FLR 937 and N v J [2024] EWFC 184. In both cases, Peel J restates that in order to be a relevant consideration in a financial remedies application, the conduct complained of must be at a “high or exceptional level” and have “an identifiable (even if not always easily measurable) negative financial impact” caused by the act/omission. It is noteworthy that neither such requirement is in fact included in s25(2)(g). 

Nevertheless, that requirement for both ‘exceptionality’ and a causative financial impact of the abuse means that, in my professional experience, domestic abuse is frequently raised by clients, but very rarely litigated. Indeed, the restrictive interpretation of s25(2)(g) means that ‘conduct’ is often specifically excluded from consideration at the very outset of proceedings.