According to the Domestic Abuse Act 2021, economic abuse (financial abuse) is defined as being ‘behaviour that substantially affects [a partner’s] ability to acquire, use or maintain, money or property, or to obtain goods or services.’
Depending on the facts, this type of abuse may be relatively easy to allege whilst, at the same time, being extremely difficult to prove. Some abusers may therefore come to feel ‘untouchable’. This area of law is littered with such instances. The devil is in the detail as they say. ‘Stealing’ your partner’s money, or fraudulently using their credit cards, seem to be clear-cut black and white examples, yet they are often tinged with grey, as well. Arguments often hinge on the concept of consent, which at times can be a fluid and even an elusive one. Has this been freely given, for example? May it be implied in the circumstances, even?
Litigants in the Family Court, sometimes allege that their (ex)partner has forced them to take out loans, extend credit facilities, stand as guarantor, or request overdrafts, against their will. This might be something that can be more easily proved in the context of a relationship that is ‘obviously’ a controlling and coercive one. Roughly speaking, the more evidence there is of controlling behaviour, such as lists of rules, or arbitrary impositions, which carry ‘sanctions’, the easier it becomes to prove financial abuse, if this is alleged.
In one of the cases, the partner insisted that a specific amount (not a penny more or less) had to be spent on birthdays and Christmas gifts for the children. This was in circumstances where he was spending substantial sums on slot machines, not paying the rent, and carrying high credit cards debt. However, if the allegation is, in essence, a stand-alone one, in the absence of corroborative text or email exchanges, the probative evidential hurdle may prove to be insurmountable. Also, take the partner who insists that a certain percentage of the joint household income must be saved, no matter what. Of course, this is fine if they both freely consent to it, and they can afford it. But what is to be done if there isn’t complete agreement? Is that financial abuse? What if the ‘savings maxim’ is treated as a ‘household rule’, and one partner frequently raises it, causing argument and distress to the other, but there are no other consequences, for a failure to adhere to it? Is that financial abuse?
Sadly, the situations described in the paragraphs above are not ones dreamed up for exam papers. They are real-life ones, which have only become apparent in the context of a relationship breakdown; or where myriad bills such as household utilities go significantly into arrears; or where the consequences of dissent have escalated to physical or emotional abuse, sometimes seriously injurious ones. Although legislation is generally improving, the law is a very blunt tool in these instances, for several reasons, which we will now briefly turn to.
Burden rests on the victims
Legal proceedings are predicated on a very adversarial premise. Victims of financial abuse might see legal proceedings as being a form of abuse in its own right. This is known as litigation abuse. Crucially, the perpetrator doesn’t have to prove anything, at all. Everyone reading this will be familiar with the maxim ‘innocent until proven guilty’. This is another way of saying that the burden of proving allegations rests on the victim, as a matter of law. Th is legal truism is easily stated but sometimes difficult to be seen as fair, especially if there are no contemporaneous text or email exchanges to rely on. Furthermore, there are a number of other resource constraints. The Family Court system is bending under the strain of domestic abuse. Between 60% and 90% of family law cases contain such allegations. This is exacerbated by the fact that Legal Aid is difficult to get, perpetrator programmes are costly, even if available, and delays can be lengthy. Also, social and/or religious mores may result in financial abuse becoming normalised. For example, ‘what’s wrong with men being in charge of the money? Isn’t that what is supposed to happen?’
The good news is that this area of law is fast developing. The understanding of the cause and effect of financial abuse is deepening. New initiatives, programmes and policies are being regularly rolled out on a local and national level. Specialist courts known as Pathfinder Courts are being trialled in some areas. Also increasingly, the ‘voice of the child’ is given significant weight, it being recognised that this is an important part of the evidential matrix. Furthermore, it has been long recognised that abuse does not necessarily need to be viewed through a lens of violence, aggression or physical confrontation. Financial abusers are conniving, manipulative and contrary. To unknowing associates they are rarely seen as being the stereotypical Shakespearean villain, ‘a usurping swine, who has no friends’.
Financial abuse may, of course, result in emotional, psychological, or even physical injury, in many cases. Take for instance the situation where restricted access to funds prevents the victim from buying food, medication, personal sanitary items, or even from paying for water or heat. The harmful effects can be debilitating, traumatic and enduring.
There are a number of charities, barristers’ chambers and solicitor practices which specialise in this area of law. Also, most local authorities and almost all of the larger police forces have dedicated units, with specially trained officers.
Bastian Lloyd Morris Solicitor Advocates specialise in all aspects of the law regarding family-related abuse. Find out more on the Bastian Lloyd Morris Solicitors website.
Solicitor Advocate
Bastian Lloyd Morris
