If you or a family member is in immediate danger, please call 999. Further support can be found at http://www.refuge.org.uk/ or by phoning the free 24-hour National Domestic Violence Helpline on 0808 2000 247.

Domestic abuse affects people of all cultures and socio-economic statuses. Affluent victims of domestic abuse will often experience economic abuse, and coercion and control during an abusive relationship. If you have been able to escape your situation and are now divorcing your abuser, one of the foremost questions in your mind is likely to be, whether or not the abuse you have suffered will lead to a more favourable financial settlement.

What is domestic abuse?

The Domestic Abuse Act 2020 (the Act) provided a statutory definition of domestic abuse for the first time. The definition consists of two parts, the first being the relationship between the victim and their abuser, and the second defining what domestic abuse is.

Under section 1 of the Act, domestic abuse occurs if Party A and Party B are both aged 16 years or over and the behaviour is abusive. Abusive behaviour is defined as:

• physical or sexual abuse;
• violent or threatening behaviour;
• controlling or coercive behaviour;
• economic abuse; and/or
• psychological, emotional, or other abuse.

Economic abuse is also defined as any behaviour that has a substantial adverse effect on B’s ability to:

• acquire, use, or maintain money or other property; or
• obtain goods or service.

What factors will the court consider when deciding on a financial settlement order?

The Court will look to section 25 of the Matrimonial Causes Act 1973, paying consideration to the following factors when making a financial order in a divorce case:

The resources available to the parties, both in terms of capital and income, and those being extant or reasonably foreseeable;

• The financial needs of each party, considering the needs of dependent children and any disabilities;
• The duration of the marriage and the age of the parties;
• The conduct of the parties (but only in exceptional circumstances);
• The standard of living enjoyed by the parties;
• Any benefit either party will lose as a result of the divorce; and
• The contributions of each party to the marriage (both financial and non-financial).

Many clients assume that the fact one spouse was abusive means that the court will consider this under the guise of ‘conduct’ when considering the section 25 factors. However, this is not the case. Conduct will only be taken into account if the court concludes that it would be inequitable to disregard it. To illustrate how high the hurdle to overcome is, in H v H (Financial Relief: Attempted Murder as Conduct) [2005] EWHC 2911 (Fam) the court made an order to leave the husband with only a small percentage of the matrimonial assets after he had tried to murder his wife, but he received a portion of the matrimonial assets nonetheless.

Will domestic abuse be considered when assessing financial need?

If domestic abuse is taking place within a marriage or civil partnership that results in the victim being unable to earn their own income, then it is likely that the conduct could be considered when the financial need of the financially weaker party. In addition, as a way of keeping control of the situation, the abuser may not make a full and frank financial disclosure. These are persuasive factors that may result in the court looking at the effect that the domestic abuse has had on matters, such as the resources available and the financial needs of the victim.

Take for example a situation where one spouse runs a successful business and the other focuses on looking after the home and children. Under the principle set out in the landmark case of White v White [2000] UKHL 54 “There should be no bias in favour of the money-earner and against the home-maker and the child-carer”. So the fact that one spouse earned the money and the other ran the home and family will not automatically result in the breadwinner receiving a greater share of the matrimonial capital. Developing on this, if the spouse who was the victim of domestic abuse can show that they were prevented from working outside the home and/or having their own money, or that their self-confidence has been so eroded that it will take time for them to re-enter the workforce, the court may award them a greater share of the assets based on lack of resources and real need. This is especially true if the victim is caring for young children.

Wrapping up

To summarise, although conduct more generally will not normally be given too much automatic weight by the court when gauging the section 25 factors against the facts of the case and the making of a final financial orders, the impact that domestic abuse (including economic abuse) has had on the victim’s economic needs and resources may be considered as a factor alongside the section 25 factors as a material part of the case which could influence its outcome in some cases. It all depends on the circumstances of each individual case. What is important is that victims of domestic abuse leave the relationship and find safety. With expert legal advice and support from other services, you can move on to a positive future.

Further help and support are available from the below organisations.

National Centre for Domestic Violence (NCDV) – 0800 970 20 70

Refuge – 0808 2000 247 (24 hours)

Women’s Aid 0808 200 0247 (24 hours)

ManKind – 01823 334 244

Galop LGBT Domestic Abuse Helpline – 0800 999 5428

Edwards Family Law is a niche London-based firm specialising in high-net-worth divorce, separation, and international family law matters. To find out more about divorce and financial settlements, please phone +44 (0)20 3983 1818 or email contact@edwardsfamilylaw.co.uk. All enquiries are treated in the strictest confidence.