As a society we are more aware of the incidence of domestic abuse now than in the past. There is a deeper understanding about its harmful, long term effects. But is it conduct that courts consider when deciding financial settlements in divorce?
While conduct is one of the factors listed in s25 of the Matrimonial Causes Act as relevant to the level of a financial settlement, conduct amounting to domestic abuse is rarely examined by the courts in this context. This is not to downplay the impact domestic abuse may have on a spouse who has survived such behaviour in their marriage. Instead, the judicial approach is based on a belief that a fair financial settlement can be arrived at by reference to the other s25 factors, such as the duration of the marriage, the age of the parties and their respective financial needs. In the 2024 case of N and J, N made allegations of domestic abuse against J and sought to have these considered in the financial remedy proceedings as a way of increasing his award. As we’ll see, his request was refused.
N and J (2024)
N and J met in 2006 and entered a civil partnership in 2012. N had few assets while J, a retired businessman, was extremely wealthy. In July 2023, they separated. The litigation was, in the words of the judge, ‘exceptionally fractious’. It appeared that every point was argued over and costs even before the final hearing were approximately £1 million.
N had significant mental health issues, including a diagnosis of bipolar disorder and a history of depression. He believed that J’s behaviour during their civil partnership, including lying about his unfaithfulness, had led to the deterioration of N’s mental health. N blamed his hospitalisation and suicide attempts squarely on J’s behaviour. His case was that it amounted to domestic abuse and conduct that should be taken into account in any financial order the court made.
The court clarified the law that applied when such a claim is made. It was up to N to prove
- The facts he was relying on to prove misconduct
- That those facts reveal conduct that is exceptional
- The behaviour has caused an identifiable negative financial impact
If N successfully met this threefold test the court must then go on to consider how the misconduct, and its financial consequences, should impact the financial remedies proceedings. It does this by balancing all the relevant s25 factors.
Here the court decided that N did not even succeed in satisfying the first test. The judge’s view was that even if N’s allegations were interpreted in the most extreme way, they were not of such exceptionality as to meet the conduct test. That’s to say having extra partnership affairs and dishonestly concealing them does not alone constitute a pattern of conduct that’s relevant to the assessment of financial awards.
The result of this finding was that the issue of N’s conduct would not be considered at the final hearing.
Using other s25 factors to address impact of misconduct
Helpfully the judge clarified that even in cases where an applicant proves a negative financial consequence of a respondent’s misconduct, the chances of that conduct ever being argued over in court will be extremely rare. That’s because the impact on the alleged survivor of domestic abuse will be taken into account by reference to the remaining s25 criteria regardless of whether domestic abuse has in fact taken place. In N v J for example, as far as the judge could see, the only direct financial consequences of the alleged misconduct were N’s increased medical costs. And these are health needs which the court is obliged to consider irrespective of any conduct.
Note that there are calls for a specific kind of domestic abuse – economic abuse – to be considered when arriving at a financial order.
Comment
The case we have discussed demonstrates the difficulty anyone seeking to rely on domestic abuse to increase their financial settlement will face. Despite growing awareness of the consequences of domestic abuse the high hurdle for such conduct to be considered in financial remedy proceedings has not been lowered. And even when the abuse is of such gravity that this conduct hurdle is surmounted, in most cases it will be possible to reach a fair outcome using the other s25 factors – without having to bring up the conduct of the parties in court.