How does domestic abuse affect matrimonial finance cases?
Domestic abuse does not always end when a relationship breaks down, and neither do its financial consequences. Changes introduced by the Domestic Abuse Act 2021 mean that controlling, coercive and economic abuse can now be recognised by the family courts, even after separation. However, despite this wider recognition, only extreme or financially consequential abuse is still likely to affect the division of matrimonial assets.
This article explains how domestic abuse is treated in matrimonial finance cases, when conduct arguments succeed, and where the courts continue to set a high threshold.
What changed with the Domestic Abuse Act 2021?
Section 76 of the Serious Crime Act 2015 criminalised controlling or coercive behaviour in intimate or family relationships, but it required the perpetrator and victim to be personally connected at the time of the behaviour. This left many victims unprotected where abuse continued after separation or where the parties were not cohabiting.
The Domestic Abuse Act 2021 (DAA) was introduced to address this gap.
In particular:
- Domestic abuse was given a clear statutory definition
- Abuse was extended beyond physical violence to include:
-
- Sexual abuse
- Emotional and psychological abuse
- Controlling and coercive behaviour
- Economic abuse
-
Crucially, the requirement for the parties to be living together was removed. The effect of this change is that post-separation abuse is now expressly recognised in law.
Can domestic abuse affect the outcome of a matrimonial finance case?
Yes, but only in limited circumstances.
Section 25(2)(g) MCA 1973 allows the court to consider the conduct of each party when making financial orders. Following the criminalisation of controlling and coercive behaviour under section 76 SCA 2015 and the amendments introduced by the DAA 2021, the interpretation of “conduct” has widened to include both coercive and economic control.
Coercive control is a form of domestic abuse involving a pattern of behaviour designed to make the victim feel controlled, dependent, isolated, humiliated or frightened. It often includes manipulation of finances, threats and intimidation.
However, despite this wider recognition, the court continues to set an exceptionally high bar. Conduct will only be taken into account if it is extreme and has had a detrimental impact on the matrimonial finances. In reality, this means conduct arguments succeed in very few cases.
What types of conduct will the court consider?
In OG v AG [2020], the court identified four categories of conduct that may be relevant in financial remedy proceedings:
- Gross and obvious personal misconduct
Conduct with the so-called ‘gasp factor’, which it would be inequitable for the court to disregard. - Wanton and reckless dissipation of assets
This may result in an ‘add-back’, where dissipated assets are notionally added back into the matrimonial pot. - Litigation misconduct
This can lead to adverse costs orders. - Non-disclosure of assets
This may allow the court to draw adverse inferences when determining the financial outcome.
How does economic abuse fit into this framework?
Although the DAA did not amend the wording of section 25(2)(g) MCA 1973, it expressly included economic abuse within the statutory definition of domestic abuse.
Economic abuse is defined as behaviour that has a substantial adverse effect on a person’s ability to:
- Acquire, use or maintain money or property
- Obtain goods or services
This aligns with the MCA 1973, which permits the court to consider conduct where it would be “inequitable to disregard” it.
When will “gross and obvious misconduct” affect the outcome?
Case law shows that the court will only intervene where the conduct is both obvious and exceptional, and often where there is a direct financial consequence.
Examples include:
- Jones v Jones [1975]
The husband attacked the wife with a razor, causing permanent disability and preventing her from working. The court transferred the matrimonial home entirely to the wife. - Hall v Hall [1984]
Post-separation, the wife stabbed the husband. The conduct was held to be gross and obvious and justified a reduction in her award. - H v H [2005]
The husband’s conviction for attempted murder resulted in the wife receiving the majority of the matrimonial assets.
Can economic abuse amount to conduct under the MCA?
Yes, but not always.
In DP v EP [2023] EWFC 6, the wife deliberately moved assets out of the matrimonial pot so the husband could not access them. This was held to be:
- Economic abuse under the DAA
- Conduct within section 25(2)(g) MCA 1973
- Gross and obvious misconduct
The court departed from equality, ordered a modest adjustment in favour of the husband, and required the wife to pay 75% of his legal costs.
However, the court also acknowledged that not all economic abuse will meet the ‘gasp factor’ threshold, even if it remains relevant to the overall fairness of the outcome.
What about psychological abuse without financial loss?
In N v J [2024], allegations of deception and psychological abuse were raised. The court held that the conduct did not meet the exceptional threshold, but confirmed that fairness could still be achieved under the wider section 25 factors, including the victim’s mental health needs.
What is the reality for victims in matrimonial finance cases?
Unless there is clear economic abuse or a causal financial impact, even serious criminal behaviour may not affect the division of assets.
There remains a gap in how non-economic abuse is reflected in financial outcomes. This can allow abusive spouses to continue exerting control through:
- Non-compliance with court timetables
- Delays and obstruction
- Escalation of legal costs
- Aggressive litigation tactics
In some cases, victims feel more vulnerable within proceedings than during the marriage itself.
Are reforms needed?
A report published by Resolution on 8 October 2024 found that:
- 80% of family justice professionals believe domestic and economic abuse is not sufficiently considered in matrimonial finance cases
The report calls for:
- Reform of interim financial remedies
- Changes to the Family Procedure Rules
- A broader interpretation of the court’s overriding objective to include safeguarding parties from domestic abuse
What should victims do in practice?
Domestic and economic abuse should be identified early in financial proceedings and clearly documented. Wherever possible, documentary evidence should be provided together with details of the financial consequences of the abuse.
How can we help?
We have extensive experience in matrimonial finance and children cases involving domestic abuse. Our team is committed to supporting clients through this challenging process and securing the best possible outcomes.
If you have experienced domestic abuse and are considering separation or divorce, please contact us by telephone or email to arrange a complimentary 30-minute call.
Keshini Rajendra
Partner and Co-Head of the Family Department
Branch Austin McCormick, Mayfair
