Domestic Abuse And Financial Remedy Proceedings – How High Is The Bar?

As Family lawyers, we are frequently asked to what extent the Family Court will take ‘conduct’ (such as domestic abuse) into account when making decisions about finances on divorce. 

There have been lots of attempts over the years to persuade the Court that the way one party has behaved should be a factor for the Court to consider when dividing up the assets.

N v J [2024] EWFC 184 directly addresses the extent to which domestic abuse amounts to conduct that should be taken into account, and goes further to examine when conduct of any type should be considered by the Family court in matrimonial finance cases. 

It is, of course, accepted that domestic abuse is “vile and indefensible” (as the judge in this case says). Domestic abuse is defined as physical or sexual abuse, violent or threatening behaviour, controlling or coercive behaviour, economic abuse or psychological, emotional or other abuse either as an isolated incident or a pattern of behaviour.

In this case, there were assets of over £32 million and legal fees in excess of £1 million. One party said that the other had inflicted emotional and psychological abuse, which had led to them suffering a deterioration in their mental health. 

The question was whether the abuse amounted to conduct to the extent that it would be inequitable for the Court to disregard it, and should be taken into account in the financial distribution.

The Court said no.

The bar for establishing conduct remains high and “undisturbed” by the increased focus on domestic abuse across the Court and justice system.

There will almost always have to be a financial impact – cases without a financial consequence will be rare. 

The conduct must be ‘material’ to the outcome – if establishing the behaviour is not going to make a difference to the outcome the Court will not focus upon it. Further, if the Court can achieve a fair outcome by considering all of the other relevant criteria the Court should not focus upon conduct.

It will more often be the case that financial distributions can be achieved with fairness through consideration of all of the other statutory criteria such as resources, needs, length of the marriage, standard of living, contributions, age of the parties and relevant health considerations. The judge said that it is not the role of the Family court to apportion moral blame or impose fines, penalties or damages when making decisions on matrimonial finances. The threshold for establishing ‘conduct’ in financial cases remains high.

For more information on how our team can help you with Family Law issues visit our family law web page.