The Smart Divorce Podcast

Domestic Abuse - Divorce and The Legal System

• Tamsin Caine • Season 10 • Episode 2

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Olivia Piercy

Olivia is a solicitor specialising in all aspects of family law and a Partner at Hunters Law LLP. She provides holistic family law advice on both the child and finance aspects of family breakdown for married and cohabiting couples. She has particular expertise in cases with complex children law issues including child abduction and child protection.

Olivia’s passion lies in domestic abuse protection and she is an activist and campaigner in that field. She previously worked at domestic abuse charity Rights of Women and has a Master’s degree in Human Rights focusing on gendered violence. She sits on Resolution’s Domestic Abuse Committee and is co-Chair of Resolution’s Working Party on Economic Abuse.  Olivia is recognised for her expertise in domestic abuse and her understanding of the dynamics of coercive control.

She is ranked as a Next Generation Partner by The Legal 500 and has been praised for being “clever, focused and tenacious and completely dedicated to each client’s case". 

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Hunters Law

Tamsin Caine

Tamsin is a Chartered Financial Planner with over 20 years experience. She works with couples and individuals who are at the end of a relationship and want agree how to divide their assets FAIRLY without a fight.

You can contact Tamsin at tamsin@smartdivorce.co.uk or arrange a free initial meeting using https://bit.ly/SmDiv15min. She is also part of the team running Facebook group Separation, Divorce and Dissolution UK

Tamsin Caine MSc., FPFS

Chartered Financial Planner

Smart Divorce Ltd

Smart Divorce

P.S. I am the co-author of “My Divorce Handbook – It’s What You Do Next That Counts”, written by divorce specialists and lawyers writing about their area of expertise to help walk you through the divorce process. You can buy it here https://yourdivorcehandbook.co.uk/buy-the-book/

To learn more about our podcast sponsor Ampla Finance – access their product guide here: https://bit.ly/3Ieqmuc
Or complete enquiry form https://bit.ly/3W4J7pz and one of the team will be in touch.


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Tamsin Caine:

Welcome to series 10 of the Smart Divorce Podcast. During this series, we're going to be speaking about the difficult subject of domestic abuse. Unfortunately, during my work, I come across people who are victim survivors of domestic abuse on a far too regular basis. So we're going to be talking to those who have survived themselves, to professionals working in this area, to solicitors, to hopefully help you to find the right support if you're in that situation. This is an issue that's not going away. So if you're going through this or you know anybody who is, I really hope this series helped you. Thanks for listening.

Tamsin Caine:

Hello and welcome to the Smart Divorce Podcast. I'm delighted to be joined by Olivia Piercy today. We had our first meeting when we were presenting a seminar together at a family law conference probably I'm going to say it's getting on towards 12 months ago now all about economic and financial abuse, and since then I've been lucky enough to be in the audience for another of Olivia's presentations and she blows me away every time I listen to her speak. So I'm really looking forward to this conversation today and I hope you're going to find it useful. I'm going to let Olivia introduce herself properly, because her CV and experience in the area of domestic abuse is monumental, so do you want to properly introduce yourself, Olivia.

Olivia Piercy:

Yeah, thank you so much for having me. It's such an honour to be on your podcast and I'm so excited that you're doing a domestic abuse themed series. As you know, it's my big passion, um, so I'm a family law solicitor and a partner at a firm called Hunters Law in london, um, and I do the full gamut of family law. So, um, children, finance, um, uh, but I tend to, 99% of my clients are referred to me because they're victims and survivors of domestic abuse. I've got a a background in working for domestic abuse charities, and so that's the prism through which I see family law, and I very much see it as my role to support people through their family law issues and their separations and divorces, protecting them through that process, um, from ongoing domestic abuse. Um, I see that, um, I see myself having two roles. One is protecting people within the family law process, trying to get them a good outcome and protect them through that process, but also, um, I I spend half of my time campaigning to change the law to make the system safer.

Tamsin Caine:

Excellent, which absolutely needs to happen. Um, I wasn't going to ask you. This is the first question, but in the light of your introduction it feels like a feels like a sensible place to start. Um, do all of your clients know they've been in abusive relationships when they come to you?

Olivia Piercy:

I suppose more now because I'm specifically referred people for that reason or because they seek me out for that reason, um, but I would say that most of my clients, even if they come to me for that reason, it is only through the process that they start to understand the, the depth, um, and the severity of the abuse that they've experienced.

Olivia Piercy:

Um, there's just so much gaslighting and brainwashing and minimizing, um, and that's very much. That's part of the process and that kind of emotional journey of like understanding what you've been through and also what you'll continue to go through. So a lot of people say, well, I have been through xyz, but I just don't want to make an issue of it and we just want to try and keep things as nice as possible and I know how things are going to go, um, uh, and so I think, as as the abuse, it doesn't, it doesn't stop at the point of separation. So, um, if people aren't aware or don't think that the abuse is relevant at that point, when they come to me and their marriage is over, it quickly becomes clearer to them through the process.

Tamsin Caine:

Yeah, absolutely, and it feels to me as if there's a pattern that is not identical but similar in a lot of cases, in the way that the cases with domestic abuse in the I'm going to say, in the background, but it's not in the background, it's very much in the foreground, isn't it? But where, where you're looking at victim survivors, there seems to be a kind of this is generally what happens. Can you talk us through that a little bit about, about how that post separation abuse shows itself?

Olivia Piercy:

I think it's interesting that idea of it being in the background, because I think that's where the family court sees it. They say, well, we're not looking at the domestic abuse, we're looking at the children, we're not looking at the domestic abuse, we're looking at the finances. So that's in the background. Keep it in the background, please, so we can focus on the issues at hand. But actually, the children and the finances are the channels through which the domestic abuse continues to be perpetrated post-separation. You cannot separate them because the perpetrator isn't separating them. That's the point, um. So those are the two channels. You know the domestic abuse dynamic does not change or lessen upon separation. It continues. Somebody doesn't want to stop hurting somebody or controlling them because the relationship's ended. It often gets worse and the last remaining channels tend to be the children, the child arrangements and finances. So that's how it plays out with child arrangements. I'm sure you'll have a.

Olivia Piercy:

I think this episode is primarily focusing on the economic abuse with child arrangements. We all know how that plays out. But with economic abuse it tends to typically plays out in three ways on the victim survivor and make it more difficult for them to access legal advice and representation, which puts them in a more vulnerable position. Financial disclosure is not forthcoming, it's very difficult to get any information about the finance, so there's often a lot of sort of smoke and mirrors like in the lead up. So sometimes that economic abuse happens throughout a marriage. So somebody can leave a marriage really having no idea what their financial position is, or being put in a sort of enforced debt situation or finding that they are, you know, burdened with an unfair amount of the outgoings for the family and they don't really know what the other party's position is.

Olivia Piercy:

And it also carries on post-separation. So failing to provide financial disclosure, which means that your lawyers are saying to you we can't really negotiate, we can't sort this out until we work out what the finances are, delaying matters as long as possible, trying to separate people from their legal teams or their support networks to disempower them, and then rearranging finances. Businesses go bust, people go off sick, they lose their jobs. You know everything ends up in a trust. It never belonged to me anyway, it was always my brother's. You know it's just. Money disappears and the delay exacerbates that. So these are the ways that domestic abuse sort of is carried out through economic abuse, post-separation.

Tamsin Caine:

I guess we should rewind a little bit. Can you define economic and financial abuse for us, so that we're all on the same page as far as what that means?

Olivia Piercy:

So there is a legal definition of economic abuse which, because I don't have it right in front of me, I'm going to get wrong.

Olivia Piercy:

It's in Domestic Abuse Act 1921 and it's within that there's finally a legal definition of domestic abuse, which is in the Domestic Abuse Act, and it defines as part of it economic abuse. Um, and so financial abuse is specifically um uh sort of enforced debt and um taking people's money and um it's, it's more um uh specific economic abuse is more like the general picture. So financial abuse is part of economic abuse, and economic abuse can also include stopping somebody from pursuing career opportunities, developing their network, getting education or building confidence and opportunities in life, so anything that has a kind of economic impact. So it's either depriving people of property, putting them in debt, stifling their opportunities, um and it uh the research shows that 99 of domestic abuse relationships involve economic abuse.

Tamsin Caine:

So it's it's not a sort of unusual niche form of domestic abuse, it's really just part and parcel of that general dynamic yeah, it feels like, feels like something that's less known, sort of more widely in the general public, unless it's an area that you work within and or or you are a victim survivor and then you might have come across it, but it I keep reading things on twitter and I probably should start looking at Twitter because it just drives me insane. But it's, this thing about domestic abuse is not just where somebody's physically hurt. All these things that we're talking about now are still abuse, but they're not around the physical side of domestic abuse, around the physical side of domestic abuse.

Olivia Piercy:

Exactly. I think people are aware of economic abuse but it hasn't occurred to them. Everybody knows that people cut off maintenance or hide their money, but they haven't identified that as a form of domestic abuse. And I think the way to understand it is that domestic abuse is coercive and controlling behaviour. That is the dynamic, that is what's at the core of it. It's not, that's not a sort of less, a softer version of domestic abuse that we sort of stuck on to the original definition. That is what domestic abuse is. It's a dynamic of control and coercion. And, uh, financial abuse, sexual abuse, physical abuse, emotional abuse these are just methods of control. These are ways that somebody maintains control over and over another person. Once you understand that, then you start to see, um, how all of these different behaviors uh form part of domestic abuse yeah, absolutely okay.

Tamsin Caine:

So we've talked about the fact that, unfortunately, victim survivors victim-survivors even after they've left the relationship are likely to continue to be abused, and some of that can be around the whole divorce process because, unfortunately, you have to have some form of contact, even if it's through a lawyer. Have some form of contact, even if it's through a lawyer. Um, how can victim survivor use the existing laws that are in place potentially to help them in their striving to become divorced and end up in a reasonably fair financial situation?

Olivia Piercy:

it's a good question with wide-ranging answers. So you know the family court has remedies. You can apply for a non-molestation order to prevent somebody from contacting you and harassing you and, you know, abusing you and coming to your house. An occupation order can exclude somebody from the home if they're being abusive um that. You know these are difficult orders to obtain um but they are available. Obviously the police can also, you know, remove people from properties and charge them and put them on and put them on bail and all the rest of it. So there are um, um remedies available, um or protective measures available, um in in domestic abuse situations Sort of. The accessibility is variable and the effectiveness is variable but they're very much there and worth finding out about.

Olivia Piercy:

In terms of economic abuse, you know if you're getting divorced, you can't deal with economic abuse within a marriage. You have to sort of get divorced in order to assess the, the um, the powers of the family court. And you have to say we want you know we're getting divorced and we make an application, say we want to sort out our um, our finances, I want to make claims for, you know, capital and income um the, the system you know should address these issues. People are ordered to produce information about their finances and then you're given a sort of opportunity and a steer to help you to negotiate once that information is before the court. And if you can't agree because somebody hasn't been reasonable, the court will make a decision and it has powers to divide the assets. We all know this. It's really about how effective that is.

Olivia Piercy:

I think there are two issues with the family court in terms of how it deals with financial remedy cases domestic abuse. One is that, um, even though the law says that it takes conduct into account, that conduct must be taken into account when dividing the assets on divorce um, judges actually uh, uh, disregard it, um, in in almost every single case. So the the case law, the law that the judges, the judge's interpretation of that statute, which says you know, everybody must, you know, the judges must consider the conduct of the parties, the case law tells judges to disregard it, and that's because they don't have the resources to have a kind of moral court. But of course, if you've been through um extensive, uh serious domestic abuse, you are going to leave the marriage significantly financially disadvantaged in so many ways and ways that you won't know about yet, that nobody can see. Yet um so um, you know, in my view, people need to be compensated for criminal behaviour which leaves one person in a far more vulnerable and weaker position financially for the rest of their lives and the other person in a much stronger position. So currently the law does not address that. It's something I think should be changed.

Olivia Piercy:

And the other thing is that the court process itself is utilised as a way of continuing to perpetrate abuse. So people are ordered to provide financial disclosure, but the system is so slow and ineffective that you can go through months and months and several hearings before enough pressure is actually put on somebody to force them to produce financial disclosure. And so often we, you know, will never get hold of enough information to really understand what the financial picture is. You know, it's not really good enough. We also have a system where, you know, one person can kind of hold all the money and pay for expensive lawyers and cut the other person off. They don't have maintenance. They don't have maintenance, they don't have legal fees, money for legal fees. Um, there is a system in place to help people to apply for an order that one party pays the other party's legal fees, but it's it's not.

Olivia Piercy:

The law isn't fit for purpose. I'm not going to go into the details because I'll um bore you, but basically the law isn't fit for purpose. It's incredibly difficult to get these orders and when you do get them, they're unsatisfactory. Any family lawyer will chew your ear off about it for hours if you get on the subject of LSBOs. So there's lots and lots of things wrong with the law.

Olivia Piercy:

Also, lots of people are pushed into mediation in completely unsuitable situations. Mediation is great. It's exactly what people should be doing. It's the dignified, constructive, humane way to resolve your finances and your children issues post-separation. But in a situation where one person doesn't want to provide an accurate financial picture, has all of the control, is abusing. The other party is deliberately trying to delay so that they can hide their money. You're never going to to get a satisfactory outcome and it's an abusive process. So there's lots and lots of things that are currently wrong with the financial remedy court, which means that, even though it looks like it should effectively address this sort of abuse it doesn't, and actually it facilitates it in lots of ways.

Olivia Piercy:

That was a very long answer.

Tamsin Caine:

No, it's just frustrating, isn't it? I want to come back to and I will move forward again, but everything you said, I had loads of questions as a result of them. So we were talking about the orders that are available to people, initially the non-molestation order, and I can't remember what the other one was called. That's the one. Um, why are they so difficult to get? And if you do get them, do they work, are they?

Olivia Piercy:

Are they difficult to get? um then.

Olivia Piercy:

So a non-molestation order is easier to get. An occupation order, um, the court decides on the balance of probabilities whether one person needs protection from the other. Um, legal aid is occasionally available. It's available for people who are um. You know, um the means test is very, very stringent. So most people in the country will fall um into the gap where they're not financially eligible for legal aid but they can't afford a lawyer. So most people will be in a situation where if they want an unmolestation order, they're not eligible for legal aid. They go to a lawyer and the lawyer says, okay, that's going to be you know 20 grand. And they're like well, I don't have that um, I mean, it's about to abuse situation, don't have any money um. So there's that. That's an immediate barrier because, you know, are they difficult to get? I can get you a normalization order probably. You know I'm pretty good at that.

Olivia Piercy:

Can you get yourself a normalization order? How about if you're being cross-examined by? You know being cross-examined on your allegations? You're representing yourself in court, um, you don't have somebody you know to support you. You don't have anybody to advise you how to write your statement. You're making all the wrong allegations, because you don't understand what you know, the the complex tests that the judge is applying, um. So, yeah, they're difficult to get if you're representing themselves yourself.

Olivia Piercy:

Um, it's a grueling process. I have so many clients who are just like I can't do that. You know. They're just like I can't go through that. I just I've already been through enough. I've come, I've got all I've got to sort out the child arrangements, I've got to sort out the finances. I'm looking at two years of litigation and I'm meant to go to court and and set out in a statement everything that has been done to me and then be cross-examined on that in order to to get that protection. So it's emotionally draining, it's financially challenging. Um, and then you do get in. It's like six months, you know, because like, okay, we'll make that order for six months.

Olivia Piercy:

Um, a lot of the time you can get someone to make an undertaking. You send a warning letter. You say, if you don't, you know, if you you didn't promise to leave my client alone, then we'll apply for a normalization order. And a lot of the time you'll get a letter back saying, okay, I'll leave them alone and that's. You know, that's enough. But if they say, no, I'll do what I like.

Olivia Piercy:

Then you've got to decide whether or not to go to court and it's, you know, it's just a lot to go through, isn't it? Um and um, and occupation orders are difficult to get because if you want to exclude somebody from their home, you've got to show that they're not going to be homeless as well. It's obviously a very onerous order and a lot of the time now people are saying, oh, the kids will miss me and you know all the rest of it. So it's just, and sometimes a judge will make an occupation order, but it'll be like one way. They'll just say, okay, well, you can have this room and you can have this room and you can have that room and you can have the kitchen on this hours. And I mean you can imagine what that feels like over the course of the year when you're trying to sort out your finances and the child arrangements. So you know these, these orders are available and we do get them. Um, but then you know it's not like that. A lot of people just don't have the stomach for it.

Tamsin Caine:

yeah, no fair enough. So there are a lot of limitations to these, and we've talked a bit about the law that's there at the moment and about some of the issues in the know. So if let's set aside for one second the people who do manage to secure legal aid and the people who drop down the gaps because there isn't any money to pay for a lawyer but they don't fit into the legal aid, which is horrendous Well, what about those people who there is money, yeah, within the family, but they don't have access to pay for a lawyer themselves today? But the likelihood is, as long as they don't spend all of the money on legal fees through the divorce process, there should be something coming to them at the end. Is there anything? Anything that can be done for those people?

Olivia Piercy:

they can try and borrow money. Um, if you've got, if you, if you've got a financial remedy case, um, before you're even allowed to apply for an lspo, that's an order that the other party pays your legal fees. And it's not the other party paying your legal fees, it's from marital assets. It's the one person has control of the marital assets and they're not sharing them. Um, but, um, you've got to first apply for a litigation loan. So that's, that's the first. You know. The first thing you do is in the situation is you write to the other side and say can you give us some money from legal fees? There's plenty of money there, you've, you've got big income. They say no, no, I can't afford it, I can only pay for my own legal fees. Okay, fine, then you've got to apply for litigation loans and the law actually says that. It says you can't even ask for an order for the other person to pay the legal fees unless you've applied for, and been rejected for, litigation loans.

Olivia Piercy:

Litigation loans are set up by loan companies, specific loan companies. They're very high interest loans. Um, from a solicitor's point of view it's great because you know cost of cut, you managed to get one cost of covered and then what happens is, at the end, the court, you know you have a deal where you say the. You know you put in the court order that first the loan gets paid off, um, and then everything else gets split. So, um, our fees get paid by the loan company and then, um, the loan gets paid off and then everything else gets split, so our fees get paid by the loan company and then the loan company gets paid back with interest from the court order at the end. So there's that option. But then, obviously, in a case where everybody's paying their own legal fees, somebody's had to take on these really high interest litigation loans and the other party is just using the available resources.

Olivia Piercy:

So it's not fair. If you don't get litigation loans, people go to commercial loan lenders and if they don't get those, they can make an application for an LSPO or a LASPO to the family court. But you've got to persuade a solicitor to basically run the case on credit. So you run up, you know, 20, 30 grand of debt in the hope that the court will order that the other side reimburses you for your fees and pays for legal fees going forward. Obviously, all the while the other parties, you know, hidden the money to press their income and says they can't afford it. So it's always such a gamble. It's quite hard to persuade us to do them. I'm constantly being persuaded to do them, with very success. Uh, you know, because I can't say no. Um, you know, because it's so unfair.

Olivia Piercy:

You just say he you know it's not always he, but you know they, they've got money, they've instructed their own very expensive lawyers. They're spending huge amounts of money just preventing this person from having a bit of advice and representation. Um, so yeah, they are difficult. So that's that's, that's the way you get it. Um, you know people borrow from friends and family. Um, some people you know, if you've got a house in your name and it's in this country and you're in this country, um, and there's not equity in it, you should be able to get a litigation loan. That's, you know, that's the option available for a lot of people. But they make these. Also, when they make these orders, the lspos, they do what's called pound for pound, last votes a lot of the time. So they'll say, okay, whatever, you know, the husband spends on legal fees, the wife can spend. These seem perfectly fair to judges because they haven't thought about it.

Olivia Piercy:

If you represent somebody in a domestic abuse situation, economic abuse situation, it takes so much more work. It costs so much more to chase and try to find out what the bloody hell is going on, like what, to find out what the assets are, than it does to simply ignore my letters. It's very cheap to ignore my letters. It costs a lot of money to write them, um, so, and also you're supporting someone who's intensely vulnerable, um, and stressed, and you know, um, and that takes a lot of time. So it's not an equal amount of work done on each side. So the pound for pound approach is also unfair and there's just lots and lots of problems with the current system which I'm trying to change, which brings us on to you trying to change them.

Tamsin Caine:

So talk us through the project going on at the moment. The project OK, I'm at that point going to hand over to you and tell us about what you're doing and tell us about some of the changes that you'd like to see.

Olivia Piercy:

Okay. So this is a project by Resolution. Resolution is the body that represents 6,500 family lawyers 6,500 family lawyers and we set up a working party for resolution looking at economic abuse because we're starting to sort of identify that all of these different behaviours that happen during divorces like people not paying maintenance, people not paying legal fees, refusing to provide financial disclosure, breaching orders, delaying all of this stuff started to realise that that is actually all part of one thing. It's domestic abuse, it's economic abuse, but the law was not addressing that. It addresses it in children cases. We have a very advanced understanding of coercive and controlling behaviour in private law children cases, but the financial remedy cases it's just very much behind in its understanding and application of the law and domestic abuse. So we set up this working party to look at it.

Olivia Piercy:

We started by um uh, doing a big piece of research. So we surveyed all of the family lawyers, um, really in the country and lots of other professionals as well. It's a multi-disciplinary working party, so it had um ifas, um, it had domestic abuse charities, um academics and family lawyers um, and we surveyed everyone just basically to say do you think that the law, um the family courts are effective at dealing with domestic abuse and financial remedy cases, and over 80 people came back and said no, uh, we don't, and then ask some more specific questions about, um, the things that I've been talking about today, and the results were really compelling. So, on the basis of that, we felt that we had a mandate to sort of come up with proposals for how the system could be improved and changed, and some of that will be in case law. Some of that would be statutory amendment and some of it's just best best practice, just doing things better.

Olivia Piercy:

Um, so, um, we got together um a huge group of um really passionate and dedicated um family law professionals who debated um all sorts of different proposals that we come up with to really work out what would work and what wouldn't. And um, uh, we're currently writing a big report which sets out our research um and also the proposals for change um and that's going to be uh published on the 8th of october, um, which I believe is before. This podcast um is being produced yeah, absolutely, absolutely.

Tamsin Caine:

We will make sure we put a link to the report in the show. Don't say you will be able to have a look at it, um, although actually is it going to be in plain english?

Olivia Piercy:

no, it's not going to be in plain english, but there's an executive summary, um, which will be in plain english, um, which I expect is the part that most people will read, or blogs about the executive summary. But, yeah, there'll be a summary at the beginning. There's about 40 pages. That perhaps only I understand, but there'll be, hopefully a pithy, accessible executive summary which will explain the findings of our research and the key recommendations for change. And I don't know what will happen next. I know that the Law Commission is doing a big project on financial remedies in general and that they have taken an interest in our work and we hope very much that our recommendations will feed into theirs. And there's a lot more interest in general about economic abuse and domestic abuse, post-separation and through the family court process at the moment, so I really hope that this will form a part of the conversation.

Tamsin Caine:

Yeah, fingers crossed. So is your hope that I might be putting words into your mouth, and I'm sure you won't. Let me do that, um, but is your hope that the, that the law changes and that there's a, there's a fairer outcome for victim survivors of domestic abuse during the divorce process, so that they're not on the back foot all the time? And and is that? Is that in terms of the process itself, the ability for the ongoing abuse through kind of legal fees, particularly in the, and the access to, to funds to pay for legal fees? Or is there another factor that I've not thought about?

Olivia Piercy:

I mean, that's basically spot on, exactly, um, my Exactly. My hope is that we'll have a more progressive application of domestic abuse within financial remedy cases. I think what's happened is the government, successive governments, have stripped resources from the courts so that the family courts are on their knees. They cannot process cases fast enough, and the delay in the justice system is causing and exacerbating harm, and so it's completely understandable that judges and other concerned individuals are saying we do not have the capacity to start to consider domestic abuse in these cases because it's going to slow things down and make a sort of broken system even more broken. That's a really compelling argument.

Olivia Piercy:

It's an intellectually dishonest argument. You can't um and and. And the fact that domestic abuse is so prevalent does not mean that it's not serious and that we should ignore it. Um, we can't say we're just going to completely ignore. The fact that domestic abuse is so prevalent does not mean that it's not serious and that we should ignore it. Um, we can't say we're just going to completely ignore the fact that this is leading to unfair outcomes and unsafe outcomes for the most vulnerable people in our court system. Um, sorry, the light's gone off, but the most vulnerable people in our court system, um uh, you know, in order to save resources, you've got to get the law right and then the resources have to meet the need.

Olivia Piercy:

Rather, than the lack of resources, dictating uh the law.

Tamsin Caine:

I understand that this won't be enough, but there is a move to try and get people who it's appropriate for out of the court system and using alternative dispute resolution methods. Do you think that's gone far enough? Do you think that's going to help at all, or is it just too broken for that to have any meaning at all?

Olivia Piercy:

No, I really support that. Um, I think that there are lots of people using the court system who shouldn't be using it. Um, and it's infuriating that I have to wait, you know, a year for a fact finding um to so the court can establish, you know, which of the two parents is abusing the children. Because they're making cross allegations, which is what happens in every domestic abuse case. Um, you know, meanwhile, people are clogging up the system, having stupid arguments. Um, but they could, they should just sort out um through another, through another, you know another channel. So it it is, um, yeah, I think you know people need help upon separation and the court is not, is not, the right place to resolve all of these issues. So it's brilliant that other channels are, you know, are being developed to help people and support people to resolve their issues. But cases involving domestic abuse, you know that is what the court should be dealing with these are all.

Olivia Piercy:

Domestic abuse is serious and so much of it is dismissed. People don't, you know, don't want to accept that. They want to say, well, that's not very serious domestic abuse. I think you can. Just, you know, all domestic abuse is serious and if people don't feel safe, uh, mediating, um, or you know doing something you know and they need, and they need court orders and they need to be in that system, they are entitled to that protection. So I think my concern obviously is that if you start to say, well, this is a case worthy for court and this isn't who's doing that screening.

Tamsin Caine:

And with what?

Olivia Piercy:

And with what resources and with what skill set. I think if somebody says they're experiencing domestic abuse and therefore their issues need to be resolved in court, they need to be given the benefit of the doubt because it's too risky to say no. No, you're probably making it up or it doesn't sound that serious. It's not that, you know, feels a bit scary, doesn't it?

Tamsin Caine:

That's a little bit scary. Yeah, is it in general the case that if there is domestic abuse in the relationship, that court is really the only place that can resolve the divorce, or are there ever cases where you could use a hybrid mediation lawyer-supported mediation or private F, private FDR or arbitration or something like that?

Olivia Piercy:

yeah, absolutely. I actually think arbitration is fine. I mean, arbitration is a is you know, it has teeth like a court system. It's faster, which is what you need. Um, a lot of the time, a perpetrator, domestically, doesn't want to arbitrate. They'd rather have the very, very slow and effective court system, and a lot of the time, it's the victim survivor who wants to arbitrate. Um, and I also think you know, yeah, of course, of course, mediation can work. Private fdrs, hybrid mediation roundtables, you know all of this collaborative law, um, these things can work.

Olivia Piercy:

And because you know domestic abuse is it's different in different relationships and the dynamics are different. What people want. I just think it's about giving people choice and making people feel empowered and not making them feel there's so much gaslighting. Already, you know domestic abuse victims, survivors they're always made to feel that they're the abuser, that they're the liar, that they've got a mental health issue, that everybody's going to find out, they're crazy, that they're greedy, that you know, and so they're going into this with such low confidence. And then, if they're told like, oh, you know, be reasonable and mediate, it's just um, that's what I'm worried about. But of course, if somebody's like do you know what and you know, the court system is just not a good place to be right now, um, for for most people.

Olivia Piercy:

So if somebody wants to mediate, yeah, of course they should give it a go.

Olivia Piercy:

I would just say to them don't feel pressured into it, let's think about how to make this safe. Let's also put in put in place like time limits, like if somebody wants to mediate and say, okay, well, why don't we mediate if you've got, like, proper financial disclosure, rather than going into this you know conversation blind when somebody's got all the information, someone doesn't, and then say to the other party okay, well, you've got a month to give us full and frank financial disclosure. Because that's a way of telling like, are they serious? You don't want to mediate with someone who's just doing it to waste your time and put pressure on you. So there's just I think it's just being like really thoughtful about how you establish whether this is likely to be a safe and effective process. But absolutely, I mean, you know you can sort out your finances over the kitchen table and there's nothing wrong with that, and it's not for me to tell anybody that they should be going to court. It's just. It's just about making people feel empowered and informed and giving them a choice.

Tamsin Caine:

Yeah, and not accepting an offer because they feel that they should and they're being told that they're not going to get any more by a perpetrator. I think is the other thing that worries me about mediating settings if there's no legal advice in the background, if the victim survivor is not having legal advice in the background, you know, if the victim survivor is not having legal advice, but then they're being pushed into making a decision quickly without full disclosure, and that sort of thing is my fear about those situations.

Olivia Piercy:

And there's so much fear involved. You know you'll talk to someone, they'll want to meet it and then they'll say, oh, but you know I couldn't ask for his pension. He's always said he'll go mad. I mean, you know it'll be like hitting the nuclear button you just think that is not.

Olivia Piercy:

That is not a safe environment or dynamic to mediate in, if you think that asking for your share of the pension assets is hitting a nuclear button and that you've been told that for years. So it's just being aware that this is the situation that people are in and and making sure that mediators are aware. You know, when my clients do want to mediate and they often do I often say well, let's have an agreement with the you know lawyer on the other side that we can both have a chat with the mediator before, so that I get to have a chat with the mediator and just say look, this is what you need to look out for, um, because I want them to be alive to the dynamics, because they don't understand what's happened behind. You know what's happened beforehand. A lot of people who are in the domestic abuse dynamic they're so used to not showing that when they're in front of a professional when they're in front of a professional yeah, absolutely, and aren't necessarily, don't have the confidence to voice their position.

Tamsin Caine:

In the setting where the other person is coming across as very confident and saying well, this is how it is, that can be massively difficult. Olivia, we're coming to the end of our time together. It always goes so quickly, I know. I know so. So much to discuss on this topic. Is there anything that you want to say to um round up or anything that you think that it would be useful for people to hear?

Olivia Piercy:

um, I um probably won't surprise you, but I think people should get legal advice, and I think they should get it really early on.

Olivia Piercy:

I think they should get it really early on. You don't need to tell the other party you're getting it. It's not an aggressive act. You are entitled to that information. You're entitled to make a plan. Nothing's going to happen as a result of you getting legal advice. It's totally confidential. But as soon as you have that advice advice you can start to think about your options, you start to become more empowered and you start to break away from the narratives that somebody else has been feeding you. Um, so that's what I was that's. You know it's about getting it. You know, getting getting yourself some legal advice as quickly as possible. And you know, I'm sure that Tamsin, would you know you would say the same. Um, you know, just having that, having that advice early on, is what equips you and helps you to make a plan. So much of this is strategic. Um, it shouldn't be, but it is, and a lot of the time somebody's been strategizing, you know, long before you even know your relationship's over. Um.

Tamsin Caine:

So yeah, I'd say, just get equipped with advice at the as early as possible is my tip absolutely, and you've not said this, but I am going to, because you might think well, I can't really say this, but if you are going to get legal advice, as olivia said, and take her recommendation, check that they have experience of dealing with people who are in domestic abuse situations, because there are amazing lawyers out there who have the experience and know how to work in these cases and know what the perpetrator might be likely to do, and there are people that have not got that same experience. And if you have been experiencing that, you really want to be's. Who's worked these cases? Who does them every day, like like olivia? Um, here's details will be in the show notes if you want to contact it okay, um, but no, I actually think, um, it's a bit more.

Olivia Piercy:

Every family lawyer will say that they deal with domestic abuse, and every family lawyer does deal with domestic abuse. Um, the law tells us that the domestic abuse isn't relevant, and so it's about finding somebody who does think it's relevant, even in circumstances when the law is saying it isn't so, rather than having someone who shuts you down and says not relevant or relevant, someone who gets it. Somebody thinks it's important because, even though we can't change the law with your case or maybe we can, but generally it's um it's.

Olivia Piercy:

It's about protecting you within that process, um, and understanding why the domestic abuse is important, even if the judge doesn't think it is.

Tamsin Caine:

Yeah, yeah absolutely, actually just a very quick. I know keep saying, saying we're going, and then other things come up. How would you find somebody other than like emailing you, which is probably going to be a lot of people's first protocol? How would you check whether somebody believes that that's important? How would you go looking for a suitable lawyer who had got that experience?

Olivia Piercy:

So Resolution does an accreditation, um, so they could give you anyone who's got the resolution accreditation is somebody who's really taken some time out um, uh to um to get that accreditation, also has done enough cases um to to to be awarded it um.

Olivia Piercy:

But I mean, to be honest, the only way that other than that, other than someone who's got you know very clearly, got kind of specific expertise in their profile, um, or who comes to a personal recommendation, the only way that you can tell whether somebody gets it, as if you know they get it when they're talking to you, um.

Olivia Piercy:

So I do think you know I always say when I speak to um potential new clients, I always just say you know, I hope you're calling around, speak to a few different people and just see who you click with, because that's so important for someone who gets it, gets you, makes you feel supported, makes you feel listened to, um and um. There isn't, you know, there isn't a qualification for that, there's no list, there's no special list out there other than the resolution accreditation. So yeah, I think I think you have to call around and speak to different people and don't be afraid to do that until you find somebody. You know if you've got somebody who's who's who's um undermining uh and making you feel that you know, know, it should be somebody who's drawing their stuff out and making you feel it is important and wants to hear about it, not somebody who's sort of brushing over it and um, uh and um minimizing it.

Tamsin Caine:

Yeah absolutely great advice. Wonderful, olivia, thank you so much for joining me. I think that's been a hugely useful session and and I hope those of you listening will download the report and at least read the executive summary, if not wading through the 45 pages. Um, thank you for listening and please do join us next time and if you have found this episode useful, please do give us a five-star review so that we can get the episodes out to even more people and hopefully help more people as well. Thank you, hi, and I hope you enjoyed that episode of the smart divorce podcast.

Tamsin Caine:

If you would like to get in touch, please have a look in the show notes for our details or go onto the website, wwwsmartdivorcecouk. Also, if you are listening on apple podcasts or on spotify and you wouldn't mind leaving us a lovely five-star review, that would be fantastic. I know that lots of our listeners are finding this is incredibly helpful in their journey through separation, divorce and dissolving a civil partnership. Also, if you would like some further support, we do have a Facebook group now. It's called Separation, divorce and Dissolution UK. Please do go on to Facebook, search up the group and we'd be delighted to have you join us. The one thing I would say is do please answer their membership questions. Okay, have a great day and take care.

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Tamsin Caine

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