eBriefs
Coercive Control in Family Law Proceedings
10th February 2023
On the 6th April 2022 the new “no fault divorce” came into effect in England and Wales, the intention of this change being to reduce the acrimony when married couples separate. However, even though you now no longer need to point blame at your spouse in order to divorce before being separated for at least 2 years, you are still able to address any coercive control from your ex-partner in financial and children proceedings.
In fact, it is not unusual for allegations of coercive control to feature in children cases that come before the Family Courts.
In 2015, coercive and controlling behaviour became a criminal offence under section 76 of the Serious Crime Act 2015. Coercive control was then also addressed by the Court of Appeal in Re H-N and Others [2021]. In this case the Court of Appeal decided that the Family Courts should move away from focusing on specific allegations of coercive control and should instead focus on the patterns of behaviour that the accused has shown.
This has had a significant change on what the Court consider during children proceedings. If a pattern of coercive and controlling behaviour can be identified, then this can play a significant role in the Court’s decision as to whether the accused should be allowed to continue contact with the children in question. Of course, you must be able to demonstrate why the patterned behaviour should lead to the conclusion that you are asking the court to reach.
When you allege coercive control, it is usual that you will have to go a fact-finding hearing before a Judge where the Court will determine which of the allegations are proved. The case of Re K [2022] EWCA Civ 468 set out that the Court is not obliged to hold a fact-finding hearing in every case where domestic abuse is alleged, but it is often the case that a Judge will deem it necessary. The Court will only consider the allegations if they believe they are relevant to the proceedings. This tends to be why they are more predominant in children matters as coercive control can be used as evidence to suggest that one of the parents should have limited or no contact with their children.
There are also cases where coercive control has been alleged in financial proceedings at the Family Court. The case of Traharne v Limb [2022] EWFC 27 set to determine whether a post-nuptial agreement was valid. In this case the wife claimed that she only signed the post-nuptial agreement as a result of her husband’s coercive and controlling behaviour. It was found by Mr Justice Cohen that the husband’s conduct did not objectively amount to coercive control and that this was not the reason why she signed the post-nuptial agreement. Mr Justice Cohen did, though, find that the post- nuptial agreement was unfair, and the wife was granted a far greater financial lump sum than she was supposedly entitled to under the post-nuptial agreement.
Despite this outcome, the court decided that the wife’s costs should be paid by herself rather than by her husband due to her allegations of coercive and controlling behaviour having been unsuccessful and having taken two days at a hearing to determine this.
Any fact-finding process for coercive control is likely to be extremely expensive, especially if heavily defended by the accused. The case of Traharne v Limb leads to questions as to whether accusing a party of this is financially beneficial in financial proceedings as it may be disproportionate to the outcome.
At Sharmans, we can provide advice and assistance if you have been a victim of coercive control. We can help you to understand your rights and how this may impact upon any Family Law proceedings you are involved in.
If you would like advice on this or any other area of Family Law, please call us on 01234 303030 and we can arrange an appointment with one of our Family Law solicitors.
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