Conduct in Financial Remedy Proceedings

You would be forgiven for thinking that a webinar on conduct in financial remedy proceedings would have been hard going in the first week of 2025, but in reality, last Tuesday's Class Legal webinar was not only exactly as described – a comprehensive review of the most recent developments in this area –it also was delivered in an engaging and digestible way, despite the complexity and sensitivity of the topic. ?

I recognise that I have a particular interest in this topic, generated, sadly, by the increased extent to which domestic abuse is raised in my work, and as a result of our deeper understanding of this subject. But the stark reality is that our laws, procedures and culture need to change to better protect people faced with dealing with the issues.

It was particularly helpful that the webinar dealt with the current law and procedure in the context of overviews of the data contained in three significant and relevant research reports; the University of Bristol Law School and Nuffield Foundation, Fair Shares report published in November 2023, the Resolution Report on Domestic Abuse in Financial Remedy Proceedings ?published in October 2024 and the most recent Law Commission Scoping report on Financial Remedies published on 18 December 2024.??

The webinar was expertly chaired by Samantha Hillas KC, who set the scene and tone with her overview of the extent to which this important topic has been the subject of detailed, high-level research, articles and debate.? We first heard from Nichola Gray KC who provided her succinct and clear analysis of the current status of caselaw on this topic. Inevitably she referenced the decision of Mr Justice Peel in N v J [2024] in which he stated that conduct is 'only to be taken into account if it is of a highly exceptional nature' and 'domestic abuse is only to be considered conduct if it has a financial consequence'. This judgment has gained a lot of attention. I am involved in the case, which is ongoing, and whilst on a professional level I am disappointed in the outcome, I have been interested to see how it has added to the debate on the issues. In the context of social and cultural change, caselaw is likely to evolve on this topic, especially given the findings of the reports referenced above. To give a few examples (and many more details are given in the webinar and set out in the reports) Anita Mehta (who, with Olivia Piercy co-authored the Resolution Report) reminded us that over 75% of the respondents had identified that domestic abuse was present in more than 21% of their cases; and 80% considered that domestic abuse is not sufficiently taken into account in financial remedy proceedings and financial awards for children. The Resolution Report made various recommendations for legal and procedural reform and calls for a cultural shift in the profession. Professor Emma Hitchings, who led the Fair Shares Report, referenced some of its statistical findings, including the clear evidence which identified the disproportional detrimental financial impact upon female domestic abuse victim-survivors divorcees, as compared other female divorcees, and the greater levels of financial vulnerability amongst those female domestic abuse victim-survivors compared with other divorcing women. That report recommended that changes to the substantive law on conduct should be considered and made other recommendations, including calls for better access to justice and the availability of legal advice.

Christine Gentry of the Law Commission gave a concise overview of the sections of the Law Commission Scoping Report which related to conduct (as the report's remit was much wider). If you have not read the report yet, please do. It is an essential read and concludes?that financial remedies law requires reform as it does not?“provide a cohesive framework in which parties to a divorce or dissolution can expect fair and?sufficiently certain outcomes”.??In the context of other recommendations for wider law reform and other observations about how conduct should be approached financial claims, the Law Commission report stated that 'it would be beneficial for the law to state clearly: (1) what forms of behaviour will be considered conduct (whether that be personal misconduct or litigation misconduct);? (2) the impact that this will or may have on a claim for financial remedies; and (3) the process to be adopted when alleging conduct'.

Nicholas Allen KC talked about the relevant procedural aspects applicable to raising conduct within financial remedy proceedings and dealing with litigation conduct. He and other speakers raised the issue of the lack of court resources to deal with these issues. This is known to be a problem which needs to be tackled, as echoed by the Law Commission which stated that 'how to strike an appropriate balance between the needs of victim-survivors and the resources available to the court' is a key issue to be addressed in any future project of law reform. ?

Given the extent of the topic, there was only limited time to discuss some of the procedural recommendations in the reports, such as the calls for the introduction of more robust costs rules for litigation conduct and greater legal aid funding, but a wealth of valuable information was shared by the speakers in a constructive way.? What comes next from the courts and the lawmakers on this topic awaits to be seen, but I agree with the observations made in all the reports, and in the words used by the Law Commission, that 'the views of those most affected by it should be taken into account' because that way, we will better understand the issues we need to address. All of us working in the family justice are uniquely placed to listen, learn and contribute to finding the answers.