It is now three years since the Serious Crimes Act 2015 received royal assent, creating a new offence of coercive behaviour in intimate or familial relationships. Last week the Sentencing Council recommended harsher sentences for offences in a domestic setting that have the capacity for lasting psychological and emotional effect. These changes not only have an impact on criminal cases of domestic abuse, but also divorce and family justice related cases too, because criminal proceedings often have a bearing on divorce and children cases.
Furthermore, the concept of coercive and controlling behaviour has been adopted and rules put in place to apply in cases before the family courts, albeit with a lower burden of proof test, and it is particularly relevant for cases involving children.
In family cases a person no longer needs to be in a relationship or live with their tormentor for coercive behaviour to be considered. Under criminal law, once a relationship has ended and there is no further co-habitation, coercion can no longer take place. In most cases that I encounter both physical and emotional separation are essential pre-conditions to escaping this kind of abuse.
A police complaint is likely to achieve physical separation as a consequence of the bail conditions set. Emotional separation is much harder. Tackling an abuser through the police will have consequences; children may see a parent imprisoned, livelihoods and reputations lost, with catastrophic financial repercussions. However, the “push me, pull you” emotional snare of the codependent relationship with the abuser (often the reason why abuse goes on for so long before friends, family and the courts become aware) is often the greatest challenge for the victim.
Once a criminal complaint has been made and evidence gathered it may not be possible to stop the process because the police and the Crown Prosecution Service can make the decision to prosecute without the victim’s co-operation or even their involvement at court. It is likely that a fault-based divorce will follow. However, a spouse charged with controlling and coercive behaviour will probably be advised by their criminal defence team to defend any allegation that might compromise the criminal case. Often they will request that the whole divorce process is stayed until criminal proceedings have concluded. Consequently there will be a delay in finalising any financial settlement in the divorce. A conviction in the criminal courts on the higher test of “beyond reasonable doubt” will, however, be compelling in the family court where the lighter test “balance of probabilities” of truth applies.
There is a common misconception that bad behaviour in a marriage influences the divorce settlement. For “conduct” to be taken into account, it has to be “gross and obvious”. In a case where the husband was convicted of attempted murder of his wife, she received the bulk of the assets. However, it is more likely that “needs” will prevail and if the spouse’s behaviour and subsequent conviction has has an impact on the financial resources available, those left will be allocated primarily to the spouse (and children) who have been the victims of the behaviour, rather than any award representing a “punishment” for that behaviour.
Criminal and family lawyers all agree that coercive control is the most pernicious behaviour which has profound familial repercussions. They must often co-operate in these types of cases. The US writer Evan Stark described controlling behaviour as “akin to terrorism and hostage taking” and he is not far wrong.
First published in The Times, 1 March 2018.