Date published: 21/11/24

Author: Sajini Sridaran, Paralegal

In recent years, domestic abuse within divorce and related financial proceedings has become an increasingly significant issue. At KMJ, we have worked on many cases where coercive and controlling behaviour, including financial abuse, has been alleged by one of the parties and conduct is an issue.

Special measures already exist to help protect victims of abuse in financial proceedings relating to divorce. However, irrespective of the existing safeguards, many victim-survivors still feel left in a vulnerable position because of the current court guidance and procedure.

Resolution (an organisation of family lawyers) has therefore recently called for a cultural shift from all professionals working in family law to improve practice. Their aim is to reduce post-separation domestic abuse, from the point of separation until the parties’ finances are resolved through a court order. Some of their most important recommendations are set out below:

Supporting a cultural shift

Resolution recommends a cultural shift in addressing post-separation domestic abuse within financial proceedings. They propose working with Lead Judges to amend existing court guidance to prevent the misuse of proceedings by perpetrators for ongoing abuse and also for court procedure to be amended so that there is a greater focus on safeguarding and the protection of victims.

Tackling non-disclosure

One of the biggest challenges in financial applications is when one party fails to provide full and frank financial disclosure. This issue can severely affect negotiations and the ability to settle financial remedy proceedings. In fact, under the Domestic Abuse Act 2021, withholding financial information is recognised as a form of economic abuse.

Where a party has failed to provide full and frank disclosure in pre-proceedings correspondence or Non-Court Dispute Resolution, such as mediation, Resolution recommends the introduction of cost orders and other penalties against those who fail to disclose their assets or income, streamlining obtaining disclosure from third parties who may have the information that has been deliberately withheld, and making sure cases of non-disclosure are handled more efficiently in court.

Non-Court Dispute Resolution (NCDR)

NCDR is a voluntary process, requiring both parties’ engagement, which is strongly encouraged by the court. The central idea is for the parties to reach agreement about the financial aspects of their divorce outside of court. It can be suitable for some domestic abuse cases if victim-survivors make informed choices and have adequate safeguards but also creates a risk of creating an environment where further abuse will take place. Accordingly, Resolution recommends that domestic abuse victims should not be forced into NCDR but should retain autonomy in choosing the process, including discontinuing it if disclosure is not provided within a reasonable timeframe.

Legal Services Payment Orders (LSPO)

LSPO’s are orders which require one party to pay the legal fees of the other party. Resolution highlights their potential misuse as a form of post-separation economic abuse. When respondents refuse to provide funds for legal fees despite having the resources, this may indicate abusive dynamics. Resolution calls for the Matrimonial Causes Act 1973 (s22ZA) to be amended to align with the Domestic Abuse Act 2021, as withholding funds or forcing the financially weaker party to take on expensive litigation loans can constitute economic abuse.

Key recommendations include:

• Avoid requiring applicants to damage their credit ratings by taking on commercial loans before seeking an LSPO.
• Recognise that loans should not be expected without full financial disclosure from the other party.
• Respondents should bear the interest costs on litigation loans when they have refused to release available funds.
• Application costs for LSPOs should be borne by the party withholding the funds.
• The practice of the “pound-for-pound” approach in domestic abuse cases should be avoided, as vulnerable parties often require more support and incur higher legal costs.
• Solicitors should not be forced to work on credit for victim-survivors, as it strains the client-lawyer relationship.

Changes to Legal Aid

Resolution advocates for significant changes to legal aid for victim-survivors to bridge the gap between those eligible for legal aid and those who can afford private legal representation. The aim is to make legal aid more accessible and sustainable for victim-survivors.

Conclusions

Resolution’s recommendations are a welcome step towards family law practitioners and the court increasing the safeguards in place to protect victim-survivors of domestic abuse within the context of financial proceedings.

However, it should not be forgotten that in many cases domestic abuse extends well beyond the financial division of assets, and it is therefore important for family solicitors to advise their clients about the range of protections available to them, including non-molestation and occupation orders, which seek to prevent harassment and can give a party the right to solely occupy the family home.

If the issues raised in this blog are relevant to you and you want to speak to one of our family law solicitors, please write to info@kmjsolicitors.com or call 0203 709 6895.