Law Articles

When abusers are quite literally made to pay 25/04/2023

Very recent caselaw has sought to deal with the issue of whether so called coercive and controlling behaviour reasonably constitutes “conduct” for the purposes of this being considered in financial remedy proceedings.

In order for us to clearly set out what we mean by that, let us take a step back.

Currently, financial proceedings associated with divorce are conducted in accordance with legislation in the form of the Matrimonial Causes Act 1973 (MCA 1973).

Section 25 of this legislation sets out how the Court will decide how to exercise its powers and S.25(g) does this with particular regard to the conduct of the parties and if that “conduct” is such that it would be, in the opinion of the Court, inequitable to disregard it.

In layman’s terms this means that the Court considers how the parties have acted in their relationship and whether what they have done is so bad that the Court should not ignore it when it comes to dividing family assets on divorce.

The Domestic Abuse Act 2021, which came into force on 1 October 2021, has created definitions for different types of abusive behaviour. One such type is “economic abuse” which is of itself a type of coercive and controlling behaviour.

Economic abuse is defined in the DAA as “any behaviour that has a substantial adverse effect on one party’s ability to a) acquire, use or maintain money or other property or b) obtain goods or services”.

There has been much debate about whether such abuse described can and does constitute “conduct” for the purposes of financial remedy proceedings, and what this means.

There is a wealth of caselaw on this subject which varies in degree as to its strength. In 2021 Mostyn J identified scenarios when such conduct may be considered, but he also set out that in his opinion there had to be some clear financial impact so that it could be quantified and reflected in the financial award, rather than an arbitrary calculation being made which he set out seemed to be in order to punish or fine the perpetrator for their apparent moral subterfuge.

It was recently held that the conduct of both parties should be considered in all of the circumstances and that matters of undue pressure or the exploitation of a dominant position to secure an unreasonable advantage over the other was relevant.

It was also recently held that the original 1981 findings in caselaw had stood the test of time and that coercive and controlling behaviour was indeed an example of undue pressure.

It was asked whether, objectively, one party’s behaviour was coercive or controlling, regardless of their intent and, subjectively, that the behaviour set out must have deprived the other party of taking certain actions of their own free will.

In a later and quite harrowing 2023 case, when asking whether economic abuse can amount to conduct within the meaning of S. 25(2)(g) the Court came back with a resounding yes. It was held that whilst the provisions of the DAA 2021 are new, not all cases will have the “gasp factor” previously required to consider them in this context.

In this case the husband was illiterate and the wife took advantage of his vulnerability by the deliberate nature of her deception and the fact that it was sustained over a long period of time. It is in cases such as this that it would of course be inequitable to disregard such behaviour and instead the Court should find in favour of the vulnerable party and make necessary and proportionate awards in accordance with this.

Whilst legislation and caselaw is moving in the right direction in some respects, there remain some grey areas as there is no clear guidance for the judiciary as to how to identify where this can and should apply and therefore how to apply it.

With no uniform way of dealing with this issue, it is likely that the debate will rage on.

For further information and advice on this issue, and other family law issues, please contact us for a free initial consultation on 01992 306 616 or 0207 956 2740 or email us.