abuse allegations
Domestic Abuse

The Impact of Domestic Abuse Allegations

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Walker Family Law
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The Impact of Domestic Abuse Allegations on Divorce and Child Arrangements

It is sadly the case that domestic abuse allegations are often raised in the course of family court proceedings.

A victim of abuse can ask the court to grant them protection from the abuse, for example by applying for an order restraining the abuser from molesting them (a ‘non-molestation order’), or for an order requiring the abuser to leave the matrimonial home (an ‘occupation order’).

Such applications are normally dealt with by the court on their own, but domestic abuse can of course be raised in connection with other issues between the parties, such as the divorce (in relation to sorting out divorce finances), and arrangements for any children.

But how exactly do domestic abuse allegations impact upon these issues?

Before we answer the question we first need to look at exactly what ‘domestic abuse’ means, particularly as the term is often mistakenly believed to refer only to physical violence.

What is domestic abuse?

The term ‘domestic abuse’ refers to much more than just physical violence.

The legal definition of domestic abuse says that behaviour of one person towards another is domestic abuse if the two people are each over 16 and are personally connected to each other (e.g. married or in a personal relationship), and the behaviour is abusive.

The definition goes on to state that 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 (see below); or

(e) Psychological, emotional or other abuse.

Note that it does not matter whether the behaviour consists of a single incident, or a course of conduct.

“Economic abuse” is defined to mean any behaviour that has a substantial adverse effect on the victim’s ability to:

(a) Acquire, use or maintain money or other property, or

(b) Obtain goods or services.

As will be seen, the definition covers a far wider range of abusive behaviours than just physical violence.

And this is very important to know, as often a victim will not realise that their partner’s behaviour amounts to domestic abuse, and will not therefore seek the legal protections to which they are entitled.

So, now that we know exactly what domestic abuse is, we can look at how allegations of abuse can impact upon divorce and child arrangements. We will begin with divorce, although we will first look at a matter that can arise in any kind of family court proceedings where allegations of domestic abuse have been made.

Participation directions

Obviously, a party who has been a victim of domestic abuse can be in a very vulnerable position if they have to face their abuser in court.

Accordingly, the court rules provide special protections for abuse victims, and other vulnerable parties, known as ‘participation directions’

The rules impose a duty upon the court to consider whether a party is vulnerable, and whether it needs to give directions to protect them.

The directions can include such things as having a screen in court to prevent the parties from seeing each other, allowing the vulnerable party to participate in hearings via a live link, and providing for the vulnerable party to participate in proceedings with the assistance of an intermediary.

In addition to these directions, the law states that in family proceedings where one party adduces evidence that they have been a victim of domestic abuse at the hands of the other party, then the other party may not cross-examine the victim in person. And if the alleged abuser does not have a lawyer then the court may appoint a qualified legal representative to conduct the cross-examination in place of the alleged abuser.

We will now look specifically at the impact of domestic abuse allegations on divorce, and financial remedy proceedings connected to the divorce.

Domestic abuse and divorce

The first thing to make clear is that domestic abuse allegations will have no impact upon the legal process of the divorce itself. The behaviour of one party is no longer relevant to divorce proceedings – all that is required to apply for a divorce is a statement that the marriage has irretrievably broken down – the court is not concerned as to why it broke down.

But what of divorce finances (‘financial remedies’)? Can domestic abuse allegations have an impact upon the financial settlement?

The answer is that they can, at least in theory.

When a court considers what financial orders to make on divorce it is required to consider a number of factors, such as the parties’ income, their capital, their needs and their ages.

One of the factors is the conduct of the parties, if that conduct is such that it would in the opinion of the court be inequitable to disregard it.

But the law states that conduct will only have a bearing upon the settlement if it is particularly serious. In order to have a bearing it must be “both obvious and gross, so much so that to order one party to support another whose conduct falls into this category is repugnant to anyone’s sense of justice.”

What this means in practice is that the conduct must be considerably more serious than the type of conduct that may occur in many divorces. Accordingly, cases in which conduct has a bearing upon the divorce settlement are very rare.

In the circumstances domestic abuse allegations, if proved, could amount to conduct that it would be inequitable for the court to disregard, but the abuse would have to be of a particularly serious nature.

There is however another, indirect, way in which domestic abuse could affect a financial settlement on divorce.

If the abuse has had an effect upon the victim’s financial circumstances having, for example, restricted them from following a career, or been economic abuse (see above), then the victim may be in a worse financial position than they would have been if the abuse had not occurred, and the court may therefore award them a more generous settlement as a result.

We will now finally move on to consider the impact of domestic abuse allegations on proceedings between parents concerning the arrangements for their children.

Domestic abuse and child arrangements

Domestic abuse allegations are unfortunately a common factor in court proceedings between parents concerning the arrangements for their children. It is not at all unusual, for example, for one parent to apply to the court for an order that they have contact with the children, only for the other party to raise allegations of domestic abuse against them.

Clearly, the court will want to know the truth of the allegations.

When a court considers what child arrangements order to make, if any, it must in particular consider a number of relevant matters, set out in what is known as the ‘welfare checklist’. One of those factors, and obviously a very important one, is any harm which the child has suffered, or is at risk of suffering.

If the child has been a victim of the abuse, or has witnessed the abuse, then clearly they will have suffered harm as a result. In fact, it is recognised that merely living in the same home where abuse has taken place is likely to have harmed the child. And if abuse has occurred then there is obviously a risk that the child will suffer harm in the future.

Domestic abuse can therefore have a direct impact upon what kind of child arrangements order, if any, the court will make (we will see an example of exactly how in a moment), and therefore it is imperative that the court first decides whether any abuse allegations are true, before deciding what order to make.

The way in which the court goes about ascertaining the truth of abuse allegations is a matter for the court to decide, but often it will fix a specific hearing for the purpose of considering the allegations. Such a hearing is known as a ‘fact-finding hearing’.

At the fact-finding hearing the court will consider each of the allegations of domestic abuse, hear the evidence of both parties, and decide whether each of the allegations are true. Obviously, it may decide that some of the allegations are true, that they are all true, or that none of them are true. Whatever the findings are, they will be taken into account at any final hearing, when the court decides what child arrangements order, if any, it should make.

We will end by looking at a recent case which demonstrated how findings of domestic abuse may affect what child arrangements order a court makes.

The case related to proceedings between the parents over arrangements for their daughter, who was born in 2020. The parents separated in 2022 and child arrangements proceedings took place. Within the proceedings the father wanted the child, who was then living with the mother, to spend half of her time with him.

The mother made various allegations of domestic abuse against the father, and the court fixed a fact-finding hearing, to determine the truth of the allegations. At the hearing the court found the mother’s allegations to be proved. The father had subjected the mother to physical abuse, emotional abuse, psychological abuse, and coercive control, had subjected the child to emotional abuse, and had exposed the child to his abuse of the mother.

In the light of these findings the court was not prepared to allow the father to have any direct contact with the child. The only contact that he could have was indirect, by way of emails, letters, cards, photographs or presents. In addition, and in order to prevent the father from subjecting the mother and the child to coercive and controlling behaviour in relation to the exercise of parental responsibility, the court ordered that the mother could make all decisions about the child’s education and healthcare without the need for input and consent from the father.

Clearly, allegations of domestic abuse can have a very serious impact upon arrangements for children. Accordingly, if you are involved in child arrangements proceedings involving allegations of domestic abuse it is essential that you seek expert legal advice, at the earliest opportunity. If you or someone you care about is being affected by domestic abuse, please reach out.