Is domestic abuse still relevant in financial remedy proceedings?

Domestic abuse is widespread and consequential. It has been estimated that for the year ending March 2022, more than a quarter of women aged 16 and over (29.3%) in England and Wales experienced domestic abuse at some point in their lives. For men this figure reduced to around 1 in 7 (14.1%).[1] Unsurprisingly, the existence of domestic abuse generally depresses outcomes in financial remedy proceedings, with victims-survivors compromising their claims for “poor deals, or even no deals, reflecting their weak bargaining power and the continuing control that the dominant party exerted over them even years after separation and divorce”.[2]

The “increasing awareness of the incidents of domestic abuse and its harmful and pernicious effects”[3] has filtered through to the professions, who have expressed concern that the impact of domestic abuse generally and economic abuse specifically are insufficiently considered in financial remedy proceedings.[4] That concern may largely have arisen due to recent judgments emphasising that, save in exceptional cases, domestic abuse is unlikely to amount to personal misconduct.[5] Short of law reform or appellate review, the high bar of exceptionality required to establish a claim for personal misconduct is relatively settled.[6]

If domestic abuse is unlikely to impact outcome as personal conduct, does that mean that this malign behaviour has no further relevance in financial remedy proceedings? This article seeks to demonstrate that the existence of domestic abuse is still of fundamental importance in a financial remedy claim even if the high threshold of exceptionality for a personal conduct claim has not been met. Alongside that premise, this article seeks to introduce a systematic approach to dealing with domestic abuse cases to both identify domestic abuse and then to improve outcomes for victim-survivors. This article will span two editions of The Review with this first part concentrating on identification.

Domestic abuse

There are no directly applicable definitions of domestic abuse for the purposes of financial remedy proceedings. However, the definitions in both the Domestic Abuse Act 2021 and FPR 2010 PD12J “are plainly contextually important and relevant to all family proceedings, including financial remedies” (N v J [21]).

Under section 1 of the Domestic Abuse Act 2021 behaviour is abusive if it consists of any of the following: (a) physical or sexual abuse, (b) violent or threatening behaviour, (c) controlling or coercive behaviour, (d) economic abuse and (e) psychological, emotional or other abuse.

Economic abuse is further defined in s1(4) as any behaviour that has a substantial adverse effect on the victim’s ability to acquire, use or maintain money or other property, or to obtain goods or services. For the purposes of the Act, it does not matter whether the behaviour consists of a single incident or a course of conduct.

Practice Direction 12J provides the following definitions:

• “Domestic violence” includes any incident or pattern of incidents of controlling, coercive or threatening behaviour, violence or abuse between those aged 16 or over who are or have been intimate partners or family members regardless of gender or sexuality. This can encompass, but is not limited to, psychological, physical, sexual, financial, or emotional abuse.
• “Controlling behaviour” means an act or pattern of acts designed to make a person subordinate and/or dependent by isolating them from sources of support, exploiting their resources and capacities for personal gain, depriving them of the means needed for independence, resistance and escape and regulating their everyday behaviour.
• “Coercive behaviour” means an act or a pattern of acts of assault, threats, humiliation and intimidation or other abuse that is used to harm, punish, or frighten the victim.

Domestic abuse may also amount to a criminal offence. Section 76 of the Serious Crime Act 2015 as amended by the Domestic Abuse Act 2021 provides that an offence takes place if a perpetrator repeatedly or continuously engages in behaviour towards the victim that is controlling or coercive. The behaviour is required to have had a serious effect on the victim, and the perpetrator is required to have actual or constructive knowledge of the serious effect of their behaviour. Whilst coercive and controlling behaviour is a criminal offence, it can also be part of a wider pattern of abuse.

A statutory guidance framework has been published in the context of the criminal offence to provide information to assist in identifying, evidencing, charging, prosecuting and convicting coercive and controlling behaviour.[7] The framework includes numerous examples of controlling or coercive behaviour. The behaviours are grouped under broad headings, with many of them routinely encountered in financial remedy cases.[8] For example:

• physical intimidation eg pretending to hit, blocking doors
• verbal abuse – which can amount to emotional or psychological abuse, for example repeated yelling and shouting, verbal humiliation either in private or in company
• constant criticism of the victim’s role as a partner, spouse or parent
• intentionally undermining and or manipulating the victim
• using location tracking
• controlling spending and bank accounts
• giving money intended as child maintenance to the children rather than the victim, to undermine parental authority
• deliberately prolonging family and/or civil court proceedings or conducting proceedings unreasonably with the intention of increasing legal fees
• deliberately frustrating the sale of shared assets, or the closure of joint accounts or mortgages
• hiding assets, particularly during the financial settlement of a divorce
• failing to provide information or disclosure requested by the court with the intention of increasing legal fees
• no longer paying the mortgage without reason, despite previously paying
• unreasonably preventing the implementation of a financial order made by the court
• misuse of joint bank accounts
• non-payment of agreed and/or required child maintenance, paying maintenance irregularly, or insisting maintenance payments will only be made if access is given to the children
• making unnecessary applications in court proceedings

Whilst these behaviours may not give rise to a personal conduct claim under section 25(2)(g), they may still amount to domestic abuse in the wider sense (even if the criminal offence of coercive and controlling behaviour is not necessarily made out).

Identification

Identifying domestic abuse is not always a straightforward task. “Coercive control creates invisible chains and a sense of fear that pervades all elements of a victim’s life. It works to limit their human rights by depriving them of their liberty and reducing their ability for action”.[9] A victim-survivor may not even be aware that their agency and autonomy has been impacted, and it is now “widely accepted that victims of domestic abuse do not always recognise the abuse, and or its impact when they are living with it; many live in a state of denial even as it is happening”.[10]

The co-morbidity of lack of agency and lack of appreciation of reduced agency makes early identification not only challenging but also of fundamental importance. Early identification is essential to develop an effective litigation strategy to reduce and extinguish the impact of the abuse to both protect the victim-survivor, but also to provide them with sufficient independence to make best interest decisions about their future.

Leaving the issue of abuse to arise organically risks post-separation abuse infecting both the legal process and its outcome. The use of a checklist as opposed to generic questioning is likely to be better at revealing the existence of domestic abuse.[11] Practitioners might usefully adapt the full list of behaviours in the statutory guidance framework (see above) to create a checklist that will assist in the early identification of domestic abuse. Safeguarding ought to extend as a matter of routine to the early discovery of domestic abuse. Best practice would be to take a client through a checklist during initial face-to-face discussions and their responses recorded in writing. Leaving a client to complete the checklist in their own time runs the risk that the checklist is ignored, sometimes out of fear that it might be discovered by a perpetrator and sometimes because the invisible chains of abuse are still present. 

The Six Ps

Once domestic abuse has been identified, victim-survivors require implementation of a tailor-made litigation strategy to achieve best outcomes. An effective strategy requires consideration of numerous different interwoven threads of law, practice and procedure. As with identification, the most effective way to develop a comprehensive strategy, and to avoid the risk of omission, will be to use a checklist. Without being prescriptive, a suggested checklist involves consideration of six Ps: proaction, protection, payment, participation, presumption and police. Part 2 of this article elaborating on the six Ps will be published in the next edition of The Review.

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This is an opinion piece. It is not intended to and should not be relied on to replace legal advice to be given in the specific context of an individual case.

[1] The Crime Survey for England and Wales for the year ended March 2022 www.ons.gov.uk.

[2] “Fair Shares?” Report published by University of Bristol/Nuffield Foundation 2025 §12.4.4.

[3] N v J [2024] EWFC 184 Peel J [29]

[4] Resolution’s “Domestic Abuse in Financial Remedy Proceedings” (October 2024)

[5] Tsvetkov v Khayrova [2023] EWFC 130, N v J (supra), Culligan v Culligan [2025] EWFC 1, MacDonald J. See also Loh v Loh-Gronager [2025] EWFC 483 Cusworth J and LP v MP [2025] EWFC 473 where Cusworth J recognised the higher courts have set the threshold for personal conduct at a “very high level”. The latter case is authority for the proposition that egregious conduct did not necessarily have to give rise to a readily quantifiable loss for conduct to be considered.

[6]See “The Problem with Conduct” by Samantha Singer [2025] FRJ 236 for arguments as to how the current application of the law might be countered.

[7] www.gov.uk/government/publications/controlling-or-coercive-behaviour-statutory-guidance-framework

[8] The existence of the behaviours is not by itself sufficient to establish the offence.

[9] Myhill and Hohl, Journal of Interpersonal Violence Vol 34 Issue 21-22 pp 4477-4497

[10] Re O (Domestic abuse: International relocation) [2025] EWCA Civ 888 [101] per Cobb LJ

[11] See The Checklist Manifesto by Atul Gawande, Metropolitan Books (2009) for the benefits of the use of checklists. The premise of the book is that no matter how expert you are, working through a comprehensive checklist can improve outcome. A checklist for surgeons helped reduced major complications by 36% and halved the death rate in hospitals that took part in a pilot study.

Read Resolution’s Good Practice Guide on Domestic Abuse