Beyond the Break-up

Legal Abuse

“He couldn’t punish me like this on his own. He enlisted the support of the police and the courts to help him to abuse me.”

Legal abuse, in the context of domestic abuse can be defined as the misuse of the legal system to perpetuate coercive control, psychological, financial and emotional abuse on an intimate or former intimate partner. This abuse can be particularly menacing post-separation when perpetrators weaponise the judicial system with the intent of causing their former partner serious harm including poverty, having her children removed from her care and to unjustly be branded a criminal. This abuse can continue for months or years and can have a serious impact on the survivor. Legal abuse is a particularly common tactic post-separation. It is sometimes referred to as lawfare – the use of the law to enable abuse rather than uphold justice.

Divorce and financial settlement

Divorce often provides men with their first opportunity to perpetuate legal abuse. As with many other forms of abuse, they are seemingly very prepared to cause themselves added inconvenience, expense and time wasting so long as their actions control and punish their former intimate partner.

Stalling and delaying is a very common tactic. He may choose not to respond to her solicitors letters or court paperwork for an extended period of time. Women become anxious and frustrated, feel they can’t move on, incur further solicitors costs trying to chase him up and months go by with no progress being made. He may fail to acknowledge service of a divorce petition. If he fails to respond, there are further ways in which a court can be satisfied that service of papers has been completed, however this will invariably involve further costs and delays. His ultimate goal might be to exhaust his former partner’s financial resources. Many men will ‘drag out’ divorce proceedings even when they’re the petitioner.

Denying access to financial resources with which to fund the divorce legal fees is not uncommon. Financial abuse is an almost inevitable part of domestic abuse during the relationship, the perpetrator commonly taking control of finances means that when a divorce is petitioned for, he may be in a position where he can cover solicitors fees using savings and income but refuses to allow her to do the same. I have also come across several cases where, anticipating a divorce, in the weeks or months preceding, he takes further control of finances, transferring joint funds into his own account in preparation of leaving her with no funds to afford legal fees.

Professionals associated with the court processes, including judges often lack understanding of domestic abuse, and unless there is a specific ‘conduct argument’ raised (where one partner recklessly or intentionally dissipates assets prior to the financial proceedings) which only happens on rare occasions, for the court to even consider domestic abuse as relevant wouldn’t be appropriate, and balanced against this, is the goal of reaching a settlement in the quickest and most cost effective way possible. 

In cases where divorce doesn’t run smoothly, the couple are often blamed and, the divorce labelled as ‘high conflict’ rather than correctly identified as post-separation legal abuse. The term high conflict wrongly implies that both parties are contributing to the problem.

“Gavin initially represented himself in the divorce and financial settlement process as ‘litigant in person’ meaning he had no solicitors fees to pay. He proceeded to send countless unnecessary emails via my solicitor. For each email, my solicitor charged a fee for accepting and reading it, another fee to email me to discuss a response, and I would be additionally billed for the solicitors’ email reply to Gavin. I know Gavin was sending these emails just to run up my legal costs. He would then message me telling me that if we carried on like this we would both end up with nothing and tried to persuade me to accept his grossly unfair financial offer. I held my ground and refused his offer but it has cost me so much.

“He also refused to sell the house. I had to apply to the court for a ‘force sale of house court order’. That incurred further legal costs. Having got the order he continues to stall. We’ve had three asking price offers but Gavin will always cause issues meaning the potential buyers pull out and we’re back to square one. I took out a legal loan to fund all of this. I can only re pay the loan once the house is sold but in the meantime the interest on the loan is increasing. It’s frightening me and I’m beginning to wonder if I will end up with nothing.”

I have not supported a woman whose former partner has been honest and fair with regard to financial settlement. In my experience, almost invariably, abusive men cannot be relied upon to be honest in their financial disclosures. They will refuse to complete a proper financial disclosure, hide assets, undervalue assets, launder money, hide money, transfer money to other people to ‘look after’ and do everything they feel they can get away with to ensure they have an unfair advantage in the financial settlement.

Intimidation is a key tactic too. Particularly in the early stages, abusers may use all of their persuasive skills to try to encourage women to bypass formal financial disclosures and agree to a financial deal that he suggests, invariably unfair. If she resists, he is likely to intimidate and threaten to get her to agree with his deal. Threats may include physical harm, taking the children from her, rendering himself unemployed to minimise his financial liabilities towards her, and threats of revenge porn. If she’s still in the family home and he pays the mortgage or part of it, he may stop paying it if she doesn’t accept his offers. When women are still sharing the same house as their perpetrator post-separation, these threats can be even more frightening.

“He started off gently, trying to persuade me that we could come to a fair settlement, no need for solicitors, we could save ourselves the expense, he told me. Making things fair was really important to him, he told me. He wanted me and the kids to have a nice house, he said. He was so polite and sounded so reasonable that I almost believed he wanted to be fair. I asked mum to check out his proposal. She seemed to have a bit more objectivity than I had and persuaded me to instruct a solicitor. He hit the roof, immediately turned nasty and vengeful, told me I’d regret it and that he’d make things difficult for me. I have been scared, intimidated and at some points considered giving in to him, but I didn’t.”

Child Arrangements Orders

Legal abuse might be threatened to intimidate a survivor who wants to leave an abusive relationship. He may threaten to have the children removed from the mother’s care should she leave. This threat is intimidating enough to keep many women in the abusive relationship. If they do leave, applications are often made to the court for a Child Arrangement Order (CAO) – an order which dictates where the children live and how contact between parents is arranged when it can’t be mutually agreed. Many women I support tell me that their former partner previously had little interest in the children, but following separation is demanding that the children live with him, or is seeking 50/50 contact. This behaviour is sometimes known as custody stalking – a vindictive course of conduct by fathers who use custody or child protection proceedings to abuse their former partner.

Abusive men often threaten this because they want to hurt and punish the mother, they want control over the children, they would like their former partner to be forced to pay child maintenance, or to limit the amount he is due to pay her. Sometimes they intend to follow through and seek maximum contact, on other occasions they just threaten this to harass, control and upset. They may also threaten to seek full residence of the children if she doesn’t accept an unfair financial settlement. Women can find themselves in intolerable situations. They often hope the courts will recognise the abuse and provide some protection for them and their children, but they are often badly let down.

Many professionals around the court system collude with the perpetrator because they lack knowledge and understanding of domestic abuse. The lack of training, the complex and often covert dynamics of coercive control and the clever manipulation of some perpetrators make it challenging for women wanting to prove to the courts they are being abused and the children are being affected. The charming and concerned father purporting to adore his children and be concerned for his former wife’s mental health is an all too familiar stereotype. He will create a false narrative that the mother is mentally unstable. She may in fact be struggling with depression and anxiety caused by his treatment of her, but this is often cited by him as evidence of her lack of fitness as a mother. Even when domestic abuse is established in a finding of fact hearing, it often makes little difference to the final outcome. There is a tendency for the courts to believe that being a perpetrator of domestic abuse is unconnected with a man’s ability to parent his children. (Hester, 2011).

During the court process, the survivor may be intimidated and conflict avoidant because the stress involved can be paralysing and debilitating. Other women might be emotional and hysterical, reacting to his continued abuse. The perpetrator might enjoy the drama and relish manipulating court officials with his easy charm, to him it’s just a power game. The result of this can be that she loses much parenting time if he is believed. It can be a dangerous strategy for her to allege domestic abuse. His defence to her allegations often take the form of false accusations of parental alienation – of maliciously manipulating the children against their father and if it’s decided she’s guilty of this, judgments can quickly go against her. When children feel hostile towards their father, this is often seen as proving his case of parental alienation, rather than the children’s feelings towards their father being validated. Parental alienation allegations can create the narrative that he is the victim of his former partner’s abuse, reversing the true situation. These counter allegations can prove very successful and can be devastating for women.

Abusive men, even when they are the applicant in child arrangement proceedings often deliberately ‘drag out’ and frustrate the process by failing to submit statements on time, failing to respond to statements, being late submitting required documents, failing to appear at certain hearings. My experience from supporting women is that rather than see these tactics as evidence of his abuse, and of using the court process to perpetuate this abuse, these men seem to be given endless chances and few sanctions for their time wasting manoeuvres.

Women subjected to this behaviour often lose time with their children and this can have a damaging impact on their psychological wellbeing, particularly when they worry how the children will cope in their father’s care.

“I think I was pretty naive in imagining a Child Arrangements Order would be the answer to my problems. I fully intended to cite domestic abuse as reason for Ben to have limited contact with the kids, but the CAFCASS officer wasn’t wanting to hear me. She’d spoken with Ben first and he’s charmed her, totally won her over. She told me it may not be in my best interests to go that route, and suggested it could look as if I was intentionally alienating the children from their dad. She stopped short of accusing me of this, but following that conversation, I didn’t dare push it.

“I got the order but it’s of little help. In every way he can, Ben will continue to frustrate me. He will be habitually late, or early, make excuses for not collecting them. The kids will often not want to go but I’m forced to send them. He will sometimes ask for flexibility and I will allow it, but when I wanted them on mother’s Day he refused. Despite having an order in place, Ben continues to do everything he can to control me around access to the children.”

Points to consider

Women are often encouraged, even expected to apply for a CAO, particularly when social care are involved. Women may be told and believe that the court order will stop the on-going abuse their former partner is subjecting them and the children to. In my experience, the courts can sometimes be protective, however on many occasions, the process can be dangerous and unpredictable for survivors who may not get the result they were hoping for. It can also allow perpetrators further opportunities to perpetrate abuse against the mother, and the process is often expensive, emotionally draining, triggering and difficult. Careful thought should be given prior to making an application for a CAO, women need to be mindful of the following:

• Domestic abuse can be difficult to prove to a court, particularly if it constitutes coercive control. Women may spend time and effort presenting information to prove domestic abuse, only for the court to not accept it. This can feel highly invalidating.
• If women are unsuccessful in their attempts to prove domestic abuse, they make themselves vulnerable to accusations of parental alienation.
• Children may be reluctant to spend time with their father, this too can be sited as evidence of parental alienation. When the court considers the mother has alienated the children, decisions may go in the father’s favour.
• If domestic abuse is proved in a finding of fact hearing, it may be dismissed as irrelevant in deciding how much contact the father has with his children.
• Child Arrangements Orders generally leave scope for a father’s continued abuse. For instance the order may dictate that the father is allowed to have the children for two weeks in the summer holidays. Exact dates are unlikely to be given in the order leaving him with opportunity to mess up her summer by repeatedly changing his dates, insisting on having the weeks that she wants, and changing his plans last minute.
• Abusive fathers may not stick to the exact times as dictated in the order for collection and drop off to frustrate the mother. He may generate excuses such as being ill when he knows she particularly needs him to collect them. He may use these tactics on a habitual basis, but they may appear too minor to complain about.
• The judgment the court makes can be unpredictable. I have seen many good, caring and effective mothers lose residence of their children to abusive and manipulative men.

Despite these reservations, there are occasions when courts do provide protection for children and mothers and orders should most definitely be sought. In my experience, the father’s unfitness and the seriousness of the abuse has to be quite significant before a court is likely to deny all contact with children. But in many cases CAOs can provide some level of protection for mothers and children so should be considered, while also being mindful of the potential pitfalls.

In some circumstances, mothers may apply to the court for an order to protect them from being repeatedly dragged to court regarding Child Arrangements Orders and other child related matters. Section 91(14) of the Children Act 1989 allows the Family Court to order that further applications in relation to a child or children may not be made by the person named in the order without the permission of the court. If granted, these orders can protect women and their children from abusive fathers using the courts to perpetrate legal abuse in cases of domestic abuse. A past history of unreasonable applications is not necessary, but the court would need to establish that there was a serious risk that, without the imposition of the order, the child or the mother would be subjected to unacceptable strain.

Malicious reports to social care

Although social care have no legal authority, they do instigate Care Proceedings – court proceedings issued by the children’s services department of the Local Authority where an application is made for a Care Order or a Supervision Order in respect of a child. If allegations are serious, social care may forward the information to the police and there may be a joint police and social care investigation.

Many allegations made to social care are anonymous, the perpetrator being unwilling to reveal his identity, but even in these situations women are often questioned, sometimes in a highly intrusive manner. On other occasions he will provide his name. The majority of these allegations are not progressed, but whatever the outcome, the process is stressful and deeply unpleasant for the mothers concerned.

Social workers may make contact following an allegation either by phone or sometimes by unannounced visit. You may be shocked and angered that a malicious allegation has been made, but don’t ‘shoot the messenger’, remain as calm and polite as possible. Your abuser would love you to react in an emotional and angry manner, although you may feel like doing this, it would just play into his hands. Be open about the abuse you have been subjected to. It’s best to say what has happened in a matter of fact, non-emotional manner, you’re more likely to be listened to than if you become emotional or highly blaming of the father. Let the facts speak for themselves and allow the social worker to conclude what is happening.

Social care will generally not disclose who the reports came from. However, if you suspect they were made by your former partner, you might consider reporting this to the police as evidence of harassment. It’s not likely to be progressed by the police in isolation, but it just might make him consider not doing it again.

“I felt so humiliated when I had an unannounced visit by a social worker. Evidently there’s been an allegation that I was a neglectful mother, she wouldn’t tell me who had made it but I felt certain it was my ex, the kids dad. She couldn’t have picked a worse morning to come round. I’d had a party the night before, just a small family gathering to celebrate my sister’s birthday but the kitchen was in a complete mess, empty bottles everywhere and my dog had vomited on the carpet, clearly having been fed too many cocktail sausages. I was trying hard to explain and justify the mess, I felt mortified. But she was nice and seemed to accept there was nothing untoward and that she’d caught me on a bad day. She was satisfied that the kids were happy and looked well cared for. It made me very angry that he could do this to me. Child neglect is a serious allegation.”

Malicious reports to the police

The police and criminal courts are sometimes exploited when abusers make malicious allegations against their former partner, hoping to distress her, discredit her and even criminalise her. In my experience, the police are not always good at looking at the context of these allegations or establishing who is the primary aggressor.

There is little written about malicious complaints made by men against women, but many more articles are written about malicious allegations made by women against men. No surprise I suppose when you consider the patriarchal society we still live in. So, I will rely on my own experience of this subject based on my support of women who have been subjected to this form of abuse.

I supported a woman who was being subjected to a campaign of terror by a former partner. He’d spent most of his adult life in prison, much of it for violence against women. Because he wasn’t accepting that she’d ended the relationship, he was intent on punishing her. He set up an incident to make it appear she’d assaulted him. Presumably he then bruised his own shins before making a complaint to the police. Despite not admitting the assault in interview, she was cautioned. The police justified this action by saying they had video evidence of the assault, they didn’t, they had a video of her flailing her arms, no evidence of an actual assault. She’d had no prior contact with the police, however this unjust caution meant that she lost her job as a carer. I intervened, made a complaint to the police, demanded to see the evidence they were relying upon. Ultimately, her caution was withdrawn following direction from the IOPCC (Independent Officer for Police Complaints) once I’d escalated the complaint to their office. The IOPCC also directed that Nottinghamshire police review their procedures for cautions.

I could give various other examples of malicious allegations made by abusive men including for offences such as fraud, child abuse, child neglect, criminal damage and drugs offences. On most occasions, the matter was not progressed further than police interview due to the lack of evidence provided by malicious complainants. However on occasions, these complaints are progressed and the trauma caused to women being subjected to this abuse can be devastating.

What is particularly sinister is that there is often a deeper motivation behind this abuse. The perpetrator may cite the incident in later divorce or child arrangements proceedings as evidence of his former partner’s violent or dishonest character, and use it as evidence that she is an unfit mother or dishonest person. Victims of these increasingly common set-ups face criminal charges alongside their emotionally depleting divorce and custody cases, which are, of course, by now stacked against them. (McQueen, 2012).

If the allegation can be proved to be malicious, the police might progress a case against the man for wasting police time or perverting the course of justice. However in the vast majority of cases, it can be difficult to prove the allegation was made maliciously and generally no action against him is taken.

If arrested or invited for police interview following a malicious complaint from a former partner, I would give the following advice:

• Say very little about the alleged incident until you’re in interview. Refrain from saying anything that might be interpreted as any type of admission or evidence. Police can use ‘unsolicited comments’ as evidence in some circumstances so be wary of what you say to the police even before the interview.
• Insist on having a solicitor present. When interviewed by the police for a criminal matter you won’t have to pay, the solicitor will be provided free of charge. Sometimes the police may manipulate admissions by clever questioning. A solicitor should protect you against this happening.

“I couldn’t believe it when I was warned in for a voluntary interview by the police. Marco had reported that I’d gone to his house in a rage, shouted at him, picked up a bottle and smashed it over his head. I was really scared because most of this was true, just not the bottle bit. I had gone to his house in a rage, but only after he’d told our kids he had ‘sexy pictures of mummy’ that he was going to share. They were too young to understand thankfully but to make a threat of revenge porn through the kids is disgusting. Evidently he had some nasty cuts to his head, I presume self-inflicted. The matter wasn’t progressed, the officer seemed to accept my account and said there was insufficient evidence to seek a charging decision. This happened three years ago and I still have nightmares about it.”

Refusing to plead guilty until she appears in court

If charged with a criminal offence such as assault against his former partner, perpetrators will regularly ‘play the long game’ at court. Most cases charged to court are strong cases with good evidence and an expectation of a guilty verdict. Weak cases tend not to be charged. In cases of domestic assault or sexual offences, women often feel frightened and intimidated at the prospect of attending court, this is normal. Defence solicitors know this and often advise their clients to plead not guilty right up to the date of the trial. They hope that she will feel too intimidated to appear at court, and if she doesn’t attend, he would generally be acquitted, there being no case to answer. If the victim does appear at court, he will often be advised to plead guilty at this late stage, knowing that she is prepared to give evidence. In most cases, these men will be given a discount on sentence to reflect their guilty plea and the sparing of the witness a trial. However she has likely endured many months of anguish awaiting the trial date.

“It was 11 months before the case came to trial. My ex had broken my jaw in two places. At many points I wanted to pull out. I was scared, overwhelmed and although I gave my evidence by video interview that would be played in court, I was scared of being cross examined and terrified of hearing his voice. If I hadn’t had so much support from the Women’s Aid court worker, I couldn’t have kept going. As it happened we didn’t have a trial, he pleaded guilty soon after I arrived. I was a mixture of relieved and annoyed. Why could he not have admitted it in his first plea hearing and spared me 11 months of sleepless nights and hell?”

Threats of legal action

Making threats to take legal action to intimidate and abuse can be an effective strategy for perpetrators. His threats can be particularly menacing when she doesn’t have the finances available to properly defend herself should he carry out his threat. No one anticipates the prospect of court without considerable stress and so this abuse can be highly damaging to the survivor. It might be that he has instigated court proceedings against her previously and subsequently threatens to do it again regarding other matters. Legal threats are often made regarding children. Abusers will know this is likely to frighten her more than anything else.

“Micky put me in fear of taking me to court and threatened to fight for full custody of the kids on the basis that I was an unfit mother. This threat went on for years – he held it over me and tortured me with it. He rarely even saw the children, he wasn’t actually interested, but his threat worried me because I know how vindictive he could be. I may not have worried so much but I had pretty vulnerable mental health – depression and anxiety and he would tell me no court would find in favour of me when I was such a ‘basket case’. Ten years on and I’m pretty sure it was all just threats to scare me. The endless stress and sleepless nights I endured believing his threats.”

Advice on how to deal with legal abuse

Offering advice around how to manage legal abuse is difficult as each case is different. Much of the time, there is no easy answer and no way of avoiding this continued abuse, however here are some general guidelines:

Document the abuse: there may be times when you need accurate records to rely upon and records made at the time will be viewed with more credibility and you should be able to provide more detail if you have notes. Having accurate records is particularly important when facing any court process.

Stay calm even when you don’t feel calm. This is important when dealing with social workers, CAFCASS officers and especially when giving evidence in court. Your perpetrator would love you to explode with ‘reactive abuse’, don’t do this.

Malicious allegations: if your perpetrator has threatened to make malicious allegations against you, make sure these are reported to someone who can document them. Any threats to accuse you of criminal misconduct can be reported to the police who should record them and provide you with an incident number. If a subsequent malicious allegation is made, there will be evidence of the threat of it.

Discussions with CAFCASS (Children and Family Court Advisory Support Service). CAFCASS often get involved when there is a legal dispute involving children in the Family Court. Their role is to represent children and advise the Family Court about what is safe for children and what is in their best interests. My experience is that women often feel that they’re not listened to by CAFCASS officers and that their concerns about domestic abuse are not taken seriously. It is advisable to stay calm when speaking with CAFCASS staff. When speaking about the father, name his behaviour that might impact on the children or your safety, refrain from blaming him in general as this is not likely to reflect well on you. Remember that the CAFCASS officer must remain impartial and it’s not their role to offer you understanding or emotional support.

How to conduct yourself in court – Ifyou feel nervousbefore court, this is normal, almost everyone anticipating court will.Try to stay calm but if your nervousness or emotion show, try not to worry but do what you can to present your evidence as clearly as possible. Most abusive men lie in court, accept this is likely to happen so you won’t be shocked when it does. Don’t ever react in an emotional way to his lies and don’t talk over him or anyone else. Once invited to speak, it is best to calmly give your version which will be the truth. Try to keep your answers short and to the point. Rely on facts and examples – “Simon put the children in the car when he’d drunk 6 pints”, not, “Simon is a terrible dad and he could have killed the kids.”

Abusive men would not be able to perpetrate legal abuse on their own. They rely on the cooperation of institutions such as the police, courts, social care and CAFCASS to continue their abuse. In my opinion, agents of these institutions habitually fail to understand or acknowledge domestic abuse, often resulting in women and children suffering terrible injustices.

Societal held stereotypes such as the ‘nagging wife’ and the ‘mentally ill mother’ help abusive men to create the narrative that they’re the victims. Courts often use gender neutral language such as ‘family dysfunction’ and ‘parental conflict’ when there is domestic abuse, this can lead to blame being wrongly apportioned to the survivor. As long as patriarchy and a widespread misunderstanding of domestic abuse remains, legal abuse will continue. The perpetrator’s much practised skills to malignly persuade and manipulate, together with the ignorance of these powerful institutions result in compounded injustices and allow domestic abuse to be continued long after the survivor has fled from her abuser.

Useful contacts

Support through Court www.supportthroughcourt.org Tel. 0300 081 0006 (Charity supporting those facing court alone).

Citizens Advice www.citizensadvice.org.uk Tel. 0800 144 8848 (National charity offering confidential advice including advice regarding legal issues).

Victim Support www.victimsupport.org.uk Tel. 0808 1689 111 (Charity dedicated to supporting victims of crime and serious incidents).

Family Court Support www.familycourtsupport.social (Advice, guidance and resources on going to Family Court).

Rights of Women www.rightsofwomen.org.ukemail – info@row.org.uk (Advice on criminal and civil legal options).