Victims of domestic abuse seeking financial remedies often assume that their spouse's abusive behaviour will entitle them to a greater share of the matrimonial assets post-divorce. However, this is a common misconception. While the courts may consider the effects of domestic abuse, it does not automatically result in the victim receiving a larger portion of the assets.
How Courts Consider Domestic Abuse in Financial Remedy Cases
Under Section 25(2)(g) of the Matrimonial Causes Act 1973, courts must consider the conduct of both parties when making financial orders. However, conduct is just one of many factors taken into account, alongside:
- Each party's earning capacity and financial resources
- Their financial needs
- The standard of living enjoyed during the marriage
- Contributions made to the family's welfare
This means that while conduct, including domestic abuse, may be relevant, it is not the sole determinant of how assets are divided.
Threshold for Conduct to Impact Asset Distribution
Recent case law confirms that for conduct to significantly affect financial settlements, it must be "gross and obvious" - as reaffirmed in Miller v. Miller; MacFarlane v. MacFarlane. Additionally, there must be a causal link between the misconduct and any financial loss suffered by the victim. Without this link, courts are unlikely to deviate from the standard 50-50 split of matrimonial assets.
Procedural Challenges in Raising Conduct in Court
It is also worth noting how any application to the court relying on conduct affects case management. Victims who wish to rely on conduct as a factor in their case must bring it up early in the legal process. It must be pleaded by the First Appointment Directions Hearing, and they must prove both its severity and the financial impact it has caused.
This requirement can be emotionally challenging for victims, as they must disclose traumatic experiences to their solicitor at an early stage - often before a strong relationship of trust has been established.
How Conduct Influences Decision-Making
Even when the conditions have been met and the court accepts the perpetrator's conduct as a relevant factor, its impact on financial division remains uncertain. In DP v. EP, for example, the court found that both spouses had equal financial needs and, in normal circumstances, would receive a 50-50 split. However, due to the wife's abusive behaviour towards the husband, the court determined that her financial needs were "depressed", thereby justifying an unequal division of assets.
Legal professionals describe conduct as a "lens" through which the court examines the financial needs of the parties, expanding or contracting them depending on the circumstances.
Key Takeaways
Victims of domestic abuse should be aware that conduct is only one factor in financial remedy proceedings – it does not automatically result in a higher share of assets. The conduct must have been gross and obvious for it to influence the settlement. Furthermore, the victim must raise conduct issues early in the process and be prepared for the emotional burden of doing so. Finally, even if conduct is deemed a relevant factor, its effect on the final settlement is unpredictable, as courts reassess the parties' financial needs.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
