Viewpoints: June 2023

In the UK, one in five women and one in seven men experience financial domestic abuse. The introduction of the Domestic Abuse (Scotland) Act 2018 criminalised any course of behaviour which causes specific relevant effects on the victim, but its interpretation in relation to financial abuse can still leave victims without the intended protection.

Domestic abuse is about an imbalance of power. Whether physical, mental or financial, the abuser seeks to exploit the imbalance to their advantage and ensure it remains in place.

Financial domestic abuse may be seen as one party directly controlling their victim’s finances: for example, making them ask for their own money for food or clothing. This would clearly be criminal under the Act. However, a more indirect way of achieving a financial imbalance is to simply stop paying a joint debt. 

Let’s say both parties earn £1,500 per month and take a mortgage of £1,000 per month. When one party refuses to contribute to that debt, a victim who wants or needs to stay in the property reduces their free monthly income, after mortgage, from £1,000 to £500 at the same time as the abuser increases their free monthly income by £500. The abuser achieves the same result as taking £500 per month from the victim’s bank account for their own use, which would be illegal. 

Is the victim now subordinate to the abuser? Have their day-to-day activities been controlled or regulated? Has their freedom of action been restricted? Is this new financial state frightening, humiliating, degrading or punishing? If any of these effects result, the deliberate non-payment of this joint mortgage is abusive behaviour criminalised by the 2018 Act. 

But it appears the procurator fiscal does not recognise deliberate non-payment of a joint loan as domestic financial abuse. 

Non-payment abuse often happens as a result of a relationship breakdown. At this point the abuser may also embark on expensive legal action which the victim is in effect financing by freeing up their abuser’s capital. 

There are difficulties for a victim of financial abuse in fighting back. Their mental state is often weakened by years of coercive control and they lack the self-confidence to fight. They often have no financial resources left to finance a legal fight but still earn too much to qualify for legal aid. 

The legal profession must recognise the difficulties victims face and find solutions. In a recent case I know of, a victim of years of horrific financial abuse had to go to arbitration to defeat a claim by her abuser. In order to obtain the judgment she won, she had to find more money to pay the arbitrator’s fees which were due on the basis of joint and several liability. 

In any case where there is a suspicion of domestic financial abuse, care must be taken to protect the victim from any further unnecessary expenses. Joint and several liability is a gift to an abuser who refuses to pay, and a further burden on the victim. 

The 2018 Act is well written and already has the power to halt financial domestic abuse. The Act was hailed as groundbreaking when it came into force. The rest of the UK has followed Scotland in introducing similar legislation. However, without recognising these forms of financial abuse as criminal behaviour and applying the law to protect the victims, we stand to render the Act worthless as far as they are concerned. 

Kevin McGillivray (non-lawyer)