Opinion: Domestic abuse and the strategic checklist approach

The first part of this article, published in the last edition of The Review, discussed the idea that domestic abuse was better identified by using a systematic approach. Once domestic abuse has been identified, victim-survivors require implementation of a tailor-made litigation strategy to achieve the best outcome.

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 as a form of “cognitive net”.[1]

Without being prescriptive, a suggested checklist involves consideration of six Ps: proaction, protection, payment, participation, presumption and police. Some – but by no means all – of the matters falling within each P are considered below.

Proaction

Representatives of victim-survivors should take a proactive approach towards dispute resolution. An absence of proaction will result in delay. Drift and delay perpetuate the control from which a victim-survivor seeks to escape. Prolonging proceedings is also a lever used by perpetrators to drive up costs and magnify stress to encourage capitulation. Unfortunately, delays inherent in court proceedings can play into the hands of perpetrators. A reserve listing is an obvious boon for any perpetrator and where possible this should be drawn to the attention of the court in the (perhaps forlorn) hope that a reserve listing can be avoided.

Perhaps counterintuitively, a directed and front-footed approach to litigation is likely to best assist a victim-survivor. Litigation by correspondence should be avoided. Resources should be efficiently targeted towards best outcomes and swift steps taken to implement objectives to reduce the consequence of potential drift and delay. Being proactive is likely to bring proceedings to a swifter and theoretically cheaper conclusion. It also provides a victim-survivor with more confidence that the chains of abuse are being eroded, encouraging more independent participation in the litigation process.

Disclosure is an area where a more proactive approach may yield dividends. Failure to provide full, frank and clear disclosure may be a form of economic abuse. It was noted in Resolution’s Report on Domestic Abuse in Financial Remedy Proceedings (October 2024) that non-disclosure is a consistent theme of domestic abuse cases. The report made several recommendations for the court’s case management powers to be better utilised by, for example, the imposition of costs orders and unless orders against a party who has failed to provide full, frank and clear disclosure during the NCDR and the court process. Both suggestions should be actively employed. A proactive approach to disclosure would also involve more routine use of third-party disclosure orders, Land Registry PN1 searches, applications under the Bankers Books Evidence Act and orders that pension providers complete a Form P. Hopes and prayers that non-disclosing perpetrator spouses will see the errors of their ways should be avoided. Where appropriate and possible, take control out of the hands of a non-disclosing perpetrator.

As noted in OG v AG [2020] EWFC 52, there are four distinct scenarios where conduct appears in financial remedy cases: personal misconduct; add-backs due to wanton and reckless dispositions; drawing inferences as to the existence of resources in the absence of full and frank disclosure; and litigation misconduct. Behaviours that can be examples of domestic abuse may give rise to an add-back (BJ v MJ (Financial order: Overseas trust) [2011] EWHC 2708) or the drawing of adverse inferences (Moher v Moher [2019] EWCA Civ 1482), even though the conduct may not qualify as personal misconduct. Both add-back and inferences impact the computation stage. Litigation misconduct may also be an example of domestic abuse and may give rise to a costs order. In the usual course litigation misconduct is similarly not part of the distribution stage.[2] Irrespective of whether the domestic abuse amounts to personal misconduct, a proactive approach to a domestic abuse case requires consideration of the three other scenarios where conduct may apply in an individual case.

Protection

A primary consideration of any litigation strategy where domestic abuse has been raised will be the potential deployment of non-molestation orders and occupation orders. In an appropriate case Family Law Act remedies may be used to protect physical, sexual and mental wellbeing (Re AI M (Non-molestation application) [2020] EWHC 3305 (Fam)).

The creation of a safe space for a victim of domestic abuse is likely to be easier to achieve with an order regulating rights of occupation within a family home as opposed to an ouster order. An order preventing occupation or entry to specified rooms within a family home by application of the discretionary regime under s33(6) of the Family Law Act 1996 is likely to be an attractive proposition to a pragmatic district judge in circumstances where domestic abuse falls short of significant harm. Where the address of a victim-survivor is unknown to the perpetrator, ensure in an appropriate case that a C8 confidential contact details form is filed at court.

Consideration should be given not only to the protection of individuals, but to the protection of assets. Effective lawful self-help remedies should be routinely considered. Some examples can be provided. Property held in sole names may be protected in an appropriate case by a matrimonial home rights notice (albeit this protects rights of occupation, not the beneficial interest) and/or a UN1. Moveable assets may be secured and retained in the safe custody of a third party. Enquiries should be made as to whether the mandate of a joint bank account or investment can restrict withdrawals to only those made by joint signature. Special care will need to be taken to ensure that further drawdowns under a mortgage facility are prevented where possible. Finally, a contractual or formal undertaking to prevent dispositions may be sought. Where self-help remedies provide insufficient protection, consideration will inevitably turn to the possibility of injunctive relief to prevent dissipation or to set aside dissipations made with a view to defeat a victim-survivor’s claim.

Payment

An important consideration in any case, but especially in a case where there are allegations of domestic abuse, is the need to ensure that budgetary expenditures, including legal fees, are met on a regular basis. In the absence of agreement, an application for interim/maintenance pending suit and a legal services payment order can be essential tools to deploy. Providing a victim-survivor with the income to meet expenditure on an interim basis does more than merely pay the bills. The payments reduce the ability of a perpetrator to control, and give the victim-survivor the space in which to take the first steps towards independence and the ability to participate more independently in decision making. Periodical payments should invariably be paid by standing order.

The sole criterion for an order under s22 Matrimonial Causes Act 1973 is “reasonableness”, which “is synonymous with fairness” (see TL v ML & ors (Ancillary relief: Claim against assets of extended family) [2005] EWHC 2860). That an order for MPS is required to be reasonable has traditionally been applied to the quantification of the sums to be paid on an interim basis. Ensuring that short-term cash flow problems are met is obviously imperative. However, what of the situation where a perpetrator continues to exercise coercive and controlling behaviour by paying bills directly rather than providing the victim with the means to pay bills themselves? It is arguably reasonable on an interim basis in the context of a domestic abuse case for a victim-survivor to pay their own bills directly rather than have them paid on their behalf by a perpetrator spouse. Careful consideration will need to be given to the cost benefit analysis of making such an application on that ground alone.

The Resolution Report on Domestic Abuse in Financial Remedy Proceedings found:

“widespread concern regarding parties failing financially to support the other party at the point of separation, both as a way of forcing victim-survivors to agree to unfair proposals and as a means of continuing to perpetrate economic abuse.”

Consequently, Resolution recommended the amendment of the Efficiency Statement for cases below High Court level to provide for a longer listing for a combined First Appointment and the hearing of interim applications where a party applies for MPS and/or an LSPO. The recommendation does not appear to have been taken up in the recently published Financial Remedies Guide 2026. One suggestion to remedy the problem caused by the time lag between First Appointment and any interim hearing is to see whether a combined listing with a longer time estimate can be obtained if Form A and D11 are issued simultaneously. (Feedback as to whether this is achievable would be welcome.)

The Resolution’s report states that refusal by a perpetrator to provide funds (where available) to a victim-survivor for the payment of their legal fees may amount to post-separation economic abuse. The report makes several recommendations that may be adapted in arguments made on LSPO applications, and also notes that a victim-survivor is at a disadvantage where funding is generally provided to the conclusion of the FDR, leaving the victim-survivor having to make a renewed application at a time when the perpetrator is spending freely on legal fees. In an appropriate case, initial LSPO funding should be requested to cover the period post-FDR to the date of and including any further application for a LSPO.

Participation

It is axiomatic that victim-survivors involved in dispute resolution should be safe, feel safe and feel able to participate in the process without intimidation. The need for effective participation directions should be considered throughout the process of dispute resolution, including during any appropriate form of NCDR. (See Vulnerable Clients within Financial Remedies [2026] 1 FRJ 47 by Anna Shadbolt and Fiona Stewart.)

In spring 2024 amendments were made to PD9A of the Family Procedure Rules 2010 introducing a Pre-Action Protocol for financial remedy proceedings. The Protocol requires the parties in financial remedy proceedings, whether represented or not, to seek to resolve their disputes without applying to court unless there are safety concerns or other good reasons for not doing so. Once domestic abuse is flagged as an issue, careful consideration should be given to which if any NCDR processes are appropriate. For example, traditional family mediation with just the parties in attendance in one room with a mediator is unlikely to be appropriate, but shuttle mediation with lawyers present and private meeting rooms might be. Early neutral evaluation with lawyers and special measures might be an acceptable solution to all parties. The use of cloud-based video conferencing platforms should be explored.

Safety and reducing the risk of undue influence should not be the only factors considered in the selection of an appropriate NCDR process. Deliberately prolonging proceedings can amount to coercive and controlling behaviour. Evaluation of whether settlement is likely to be achieved in a purely consensual NCDR process such as mediation or a partially consensual process, such as an FDR, will also come into play. The binding nature of arbitration avoids the risk of delay being used as a tool of abuse. However, non-disclosing spouses frequently advocate for early arbitration in a transparent attempt to achieve a binding outcome without the scrutiny of full disclosure.

Finally, participation directions will need to be carefully discussed. The measures to be considered are set out in FPR r3A.8 and PD3AA, and include preventing a party or witness from seeing another party or witness, allowing participation by live link and the provision of intermediaries. Where one of the parties appears in person, the need for a Qualified Legal Representative (QLR) should be considered.

Presumption

In G v G (Needs, discovery and coercive control) [2024] NI Master 5 it was said:

“Coercive control may not simply be seen in the marriage relationship prior to the separation of the parties. Judges hearing cases in which coercive control becomes an issue will, of course, bear in mind that the litigation process itself may be being used as a means of coercive control by one spouse against the other. There is a risk in such circumstances that, if a court does not act to prevent the abuse of its processes, trauma will be induced upon a party by the court experience itself.”

Awareness that a perpetrator might seek to use the litigation process as a tool of abuse should actively shape the directions sought.

When acting for a victim-survivor it will be a helpful rule of thumb to presume that a perpetrator may not comply with a court order and frame the directions sought accordingly. For example, where experts are selected from a list, ensure that if the perpetrator does not select from the list by a stated date, the victim-survivor will select the identity of the expert in default. Seek to avoid delays in the instruction of an expert by ensuring that a draft letter of instruction (LOI) is circulated in advance of any hearing so that the LOI can be agreed or a direction sought resolving the terms of the LOI at the first appointment.

Victim-survivors commonly see the FDR process as expendable and a waste of resources. However, obtaining a direction to go straight to final hearing without an FDR interposed is unlikely. After expressing the view that “even the most intractable case can yield to settlement at the FDR”, Peel J stated in GH v GH [2024] EWHC 2547 (Fam) [6] that it is:

“very hard to envisage a situation where the FDR should be dispensed with. Perhaps if one party has not engaged at all, including not attending court hearings, and has stated that they will not attend the FDR. No doubt there are other situations which might justify proceeding from First Appointment to final hearing without the FDR. But these will be very few and far between.”

A careful evaluation will need to be made prior to first appointment as to whether pre- and post-action non-compliance and the history of established and asserted domestic abuse warrant an attempt to discharge the burden of persuading a court to list directly to final hearing. Clearly repeated listings for ineffective first appointments may be persuasive. Similarly, a direction to skip the FDR process may be easier to achieve in the context of repeated listings for vacated/adjourned FDRs.

The formulation of an open proposal and the drafting of any final order should similarly seek to reduce the opportunity for delay and minimise risk of non-compliance. A presumption of non-compliance will assist with framing the terms of a final order. A coercively controlling spouse should be given as little wriggle room as possible to delay and avoid implementation. Resolution’s Domestic Abuse and Drafting Committees have produced an essential checklist for use in cases involving allegations of domestic abuse and high conflict, which can be found on the Resolution website. The checklist encourages variation from the standard template Financial Orders to “strengthen enforceability of an order and reduce the amount of negotiating between the parties once the order has been drafted”. Consideration of the Resolution checklist is essential when formulating proposals and drafting orders.

Police

As part of a case management strategy, consideration ought to be given to police involvement. Anecdotally, the police are taking allegations of controlling or coercive behaviour seriously. Specialist criminal advice should be taken on whether an offence is likely to be established and the consequences of a conviction. Victims-survivors will be familiar with the double-edged sword that a criminal conviction and any accompanying protective orders may end abusive behaviour whilst at the same time extinguishing or materially reducing an earning capacity.

Conclusion

Domestic abuse that does not fall to be treated as personal conduct is unlikely to directly impact distribution. However, left unchecked it will do so insidiously and indirectly. Victim-survivors need to be empowered to make best interest financial decisions free from the spectre of malign influence and fear. The failure to do so will likely depress financial outcome below likely legal entitlement. Working through a checklist, such as the “6 Ps”, should ensure that a comprehensive litigation strategy is employed to redress imbalance between victim-survivor and perpetrator and better equip a victim-survivor to pursue an entitlement-based outcome.

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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] See Atul Gawande The Checklist Manifesto, 2009. The benefit of a checklist as a “cognitive net” ensures that known best practices are applied consistently.

[2] OG v AG [2020] at [34]-[39], although see TT v CDS [2020] EWCA Civ 1215 [6] and [68] where litigation misconduct was considered in the substantive award.