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How domestic abuse in a marriage changes how the divorce is handled

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Ending an abusive marriage is a daunting step with studies showing that the other party often continues to perpetuate their behaviour during the divorce proceedings. When divorcing someone who has been abusive throughout the marriage, it is common for the abuser to continue their behaviour during the divorce and financial proceedings.

Because of the way in which the case management process works in the family courts, it can be difficult for the person who has been on the receiving end to make it clear to the court at the outset of the case that the other party has been abusive. This is because the initial stages are dealt with on paper, and no detailed evidence is given to the court. Arguably, the situation has been exacerbated since the introduction of no-fault divorce, because it is no longer necessary to disclose the reasons for the breakdown to the court.

Historically, domestic abuse has largely been ignored in financial proceedings, as it rarely meets the high level required to amount to “conduct” under the Matrimonial Causes Act 1973. However, the Domestic Abuse Act 2021 has updated the definition to include economic/financial abuse and coercive control.

The abusive party might seek to continue to exert control by refusing to cooperate and engage in the process, which can cause delay and lead to additional legal costs for the victim.

How will domestic abuse be treated by the court?

Financial proceedings

In financial proceedings, the task for the court is particularly difficult given the reliance on paperwork at the initial stages. At a first appointments hearing, for example, the judge will only have the respective parties’ Form E, and if the parties have complied with directions, a statement of issues, chronology, questionnaire, and Forms H and G. Possible indicators of domestic abuse the judge may look for can include:

  • A MIAM exemption relating to domestic abuse
  • A non-molestation order or undertakings in force and identified on the Form E as “other proceedings”
  • Allegations made in filed documents, such as the statement of issues or questionnaires
  • A party requesting “special measures”
  • One party being in receipt of legal aid
  • A request that a party’s address be kept confidential

The court must consider whether the domestic abuse affects the party’s ability to participate fully in the proceedings. If a party is, or is at risk of being, a victim of domestic violence, they will be considered vulnerable and, therefore automatically eligible for available measures in family proceedings.

If one spouse has been abusive, the court may take this into account when deciding how to divide the couple’s assets. While the court operates a principle of fair division rather than strict equality, abusive behaviour could influence the court to award a larger share to the victim to ensure their financial security. Although, in practice, this is rare because the conduct must be such that it would be inequitable of the court to disregard it.

Evidence of abuse can affect decisions on spousal maintenance. The court may grant higher or longer-term maintenance payments to support a spouse who has been financially controlled or who may find it difficult to gain employment attributed to the psychological impact.

Economic abuse, such as controlling a partner’s access to money, can be factored into financial settlements. The court may consider compensating the victim for any financial disadvantage they have suffered because of the abuser’s conduct.

Arrangements for Children

The primary concern in custody cases is the child’s welfare. Evidence of abuse, especially if it involved the children or occurred in their presence, may limit or prohibit the abusive parent’s contact with the children. The court may decide to award sole custody to the non-abusive parent and supervise or restrict the abusive parent’s contact.

The issue of coercive and controlling behaviour in children disputes was addressed in a 2021 case. This questioned the court’s approach to fact finding hearings, and in particular, the use of Scott Schedules which set out patterns of domestic abuse and coercive control. Several concerns were raised by the Court of Appeal, most notably being a potential barrier to fairness rather than one of assistance to the court.

Ultimately, it was decided that the use of Scott Schedules prevents the court from having the required evidence of the wider context and fails to show a “pattern” of conduct, and instead records a list of specific date, timed and factual incidents. It has now been accepted that abusive, coercive, and controlling behaviour is likely to have a cumulative impact upon victims, which is unlikely to be apparent from a Scott Schedule.

The court can put protective measures in place, such as non-molestation orders or occupation orders, to ensure the safety of the abused parent and children. These measures can impact living arrangements and the overall dynamics of family life post-separation.

Evidence of abuse can lead to a non-molestation order, which prohibits the abuser from contacting or approaching the victim. Breach of such orders is a criminal offence and can further influence the court’s decisions on both financial and child arrangements.

The court may grant an occupation order, allowing the abused spouse and children to remain in the family home while excluding the abuser. This ensures stability and safety for the children and parent.

How will a victim of domestic abuse be supported?

Special measures, or participation directions, apply as soon as possible after the start of proceedings and continue until resolution of the case. The judge can make the following measures in cases where issues of domestic abuse have been raised:

  • Prevent a party or a witness from seeing another party or witness by erecting screens in the court room
  • Allow a party or witness to participate in hearings and give evidence by video link instead of in person
  • Separate entrances and exits to/from the court building
  • Separate waiting areas and/or waiting rooms

Any of these measures can be put in place by the court to ensure the victim is able to fully participate in the proceedings without suffering further harm. Where an allegation of domestic abuse has been made, the court will remove the risk of the couple having to face each other in court. There is now a legal bar on parties cross-examining each other where there is evidence of domestic abuse.


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