Domestic abuse and its place in financial remedy proceedings

The recent case of N v J [2024] considered the issue of domestic abuse and its place in financial remedy proceedings. The approach of the court is, of course, that domestic abuse is indefensible. However, the issue to be determined is whether the domestic abuse being alleged is a relevant factor in determining the outcome of financial issues between two parties.

Anna Barrick, Paralegal in Coodes’ Family team, explores this case and the implications it will now have.

What has changed?

Recent changes in the law mean that the divorce process is now ‘no fault’ based. This means there is no longer a requirement to lay blame at either party’s door in relation to how or why the marriage is ending. One or both parties can apply to the court for a divorce on the belief that their marriage has ‘irretrievably broken down’. This is the only test required, and the court does not expect any further explanation or evidence to be provided.

In contrast to this, is the recent and necessary expansion of domestic abuse and its definitions. This is coupled with a more general and increased public awareness of the subject. Non-physical forms of abuse are now recognised as domestic abuse. Understandably, more clients will now be inclined to ask about the impact of the abuse they have suffered when it comes to financial remedy proceedings during divorce.

When courts determine how finances will be distributed during proceedings, they consider several factors. Set out in Section 25 of the Matrimonial Causes Act 1973, it is a requirement to consider ‘the conduct of each of the parties, if that conduct is such that it would be inequitable to disregard it’. Simply put in this context, if domestic abuse has occurred within a marriage or civil partnership, it would be unethical of the court to ignore this fact when making decisions about the money to be awarded to each party.  

Proving ‘Conduct’

Domestic abuse is ‘conduct’ that can be raised as a factor in determining how financial matters are resolved. However, the threshold for conduct to be taken into consideration is very high. The court states it must be ‘gross and obvious’ in order for it to be considered. In addition, it is not enough for the court to determine that there was domestic abuse. There also has to be a financial consequence of that behaviour. Financial loss does not have to be precisely calculable—usually, this requires a broader evaluation.

The party alleging conduct must prove:

• The conduct that is being alleged (i.e. the abuse)
• The conduct meets the high threshold (it is ‘gross and obvious’)
• The financial consequence of this conduct upon them

The case of N v J [2024]

In July 2024, the case of N v J [2024] saw ‘N’ alleging that ‘J’ was ‘gaslighting’ them about their infidelity during their 14 year relationship. J denied that they had been engaging in sexual activity outside of the marriage. This perceived deception caused N to have extreme psychological difficulties. This led to N requiring hospitalisation, rehabilitation, medication, and ECT (electroconvulsive therapy).

In 2021, J admitted that they had been engaging in sexual activity outside of the relationship. N cites that J’s behaviour was the reason for their mental health decline and the need to obtain treatment.

The assets in this case were worth approximately £32 million and the court needed to consider whether the alleged domestic abuse was relevant and if it should be considered or be removed from the case altogether.

The outcome

The court determined that even if the allegations were proven, they would not impact the outcome of the financial proceedings. However, the judge also stated that N’s allegations of J’s conduct were not ‘exceptional enough’. He added that he was not satisfied that J’s conduct caused the decline in N’s mental health.

Increased awareness of domestic abuse and its definitions does not lower the threshold to be met for conduct.In having these new, non-physical definitions of domestic abuse, it will be intriguing to see in what circumstances behaviour such as gaslighting can be quantified as ‘exceptional’, or ‘gross and obvious’. At present, it can feel unjust and at times arbitrary in its application.

It is not for the financial remedies court to impose a fine, penalty or damages upon a party for conduct. On a personal level, it is understandable that ‘N’ would seek some form of compensation. However, the reality is that this is only achievable in very rare circumstances.

It is important to remember that the court has a duty to consider all the criteria in Section 25 of the Matrimonial Causes Act 1973. This includes needs, resources, contributions, health, age, duration of relationship, standard of living during the marriage, and any disabilities of the parties.

Domestic abuse is a difficult and sensitive topic. At Coodes, our Family Lawyers have a wealth of experience in supporting and advising clients who have suffered domestic abuse. We can work with you to resolve divorce and financial matters.

For more information, reach out to Anna Barrick by emailing anna.barrick@coodes.co.uk or call 01726 874762. Alternatively, you can fill in our online contact form so the right person can pick up your query.

Local support

If you are in immediate danger, call 999 and ask for the police. If you can’t speak and are calling on a mobile, press 55 to have your call transferred to the police.

There are many local services in the South West helping anyone who is experiencing any form of domestic abuse. Here at Coodes, we work closely with many of these organisations and often refer our clients to them for support.

First Light is a charity supporting people in Cornwall, Devon and Wiltshire. It offers local helplines, confidentiality and specialist advisors for children.

Women’s Aid is a national charity offering help to women and children affected by domestic abuse. They have a 24 hour helpline and a range of online services.

The SUsie Project offers support to men and women who have experienced domestic abuse and are no longer with their abuser. The project aims to help people in Cornwall regain their confidence, self-esteem and realise their ambitions for the future.

The Women’s Centre Cornwall supports women and girls over the age of 11 who have experienced some form of abuse. It provides a safe and supportive environment and access to a range of services and helplines.

CLEAR: Emotional Trauma and Therapy Specialists offer counselling for anyone who has been sexually abused. The centre provides help for parents and weekly support groups for men and women.

SPLITZ, Devon Domestic Abuse Support Services offers one to one support for victims of domestic abuse who are at medium or high risk of harm. The support service can help with safety planning, court proceedings and issues such as housing or separation.