Coercive and Controlling Behaviour and its impact on obtaining a Get
22nd April, 2022
The Domestic Abuse Act 2021 has been a significant and long awaited piece of legislation which has been drafted with the intention of providing increased powers to deal with perpetrators of domestic abuse.
The legislation itself has expanded the meaning of domestic abuse, incorporating a definition of controlling and coercive behaviour with a list of behaviours which may denote this abuse.
The recent case of Moher v Moher highlights the impact on parties of coercive and controlling behaviour which may continue long after separation.
By way of background Mr and Mrs Moher had married in 1995 and had three children. They had separated in 2016, with their divorce and financial proceedings ending in 2019. The financial proceedings had concluded with the Husband being ordered to pay the Wife a lump sum of £1.4million. In addition to the lump sum the Husband was ordered to provide the Wife with periodical payments (spousal maintenance) until he obtained a Get.
A Get is a document of divorce under Jewish law. Although either spouse can apply for a Get it is the Husband who must provide instructions for this document to be drafted. Once written the Get is the presented by the Husband or his agent to the Wife before the Beth Din (a rabbinical court), and it must be physically accepted by the Wife.
If a Get is not secured by the Wife then the following consequences could impact the Wife:
- Neither party can have a religious marriage until a Get is obtained even if they have been civilly divorced.
- In the orthodox Jewish faith if the Wife had a child with another Jewish man then that child would have an illegitimate status and they and their descendants could not marry in the Jewish faith.
- The Wife would be seen as committing adultery under Jewish law if she was in a sexual relationship with another man even if they have been civilly divorced.
- The Wife would not be able to marry a man she had been in a relationship with before obtaining her Get.
Therefore the obtaining of a Get can be extremely important for a woman going through a divorce within the Jewish faith. As a result there are provisions within the law in England and Wales to obtain undertakings (formal promises to the court) from a Husband to confirm that he will provide the Get. If an undertaking is breached by a party then this is deemed to be a contempt of court and the penalties can be serious, including fines and ultimately imprisonment.
However, despite these provisions and protection being afforded to parties in need of a Get, some will not comply with Court Orders. In the case of Moher v Moher, Mr Moher appealed the final Order made within the financial proceedings arguing that the judge had not quantified all assets, including undisclosed assets, with a further strand of his argument being that he should not have to make the periodical payments to his Wife until she had obtained the Get. The appeal was dismissed on both points and with Moylan LJ considering that the court did have jurisdiction to order Mr Moher to pay periodical payments until he had obtained the Get.
Irrespective of this decision of the Court of Appeal Mr Moher refused to provide Mrs Moher with the much wished for Get, which would ultimately end her Jewish marriage to her husband and ensure that he had no rights over her as his wife. Mrs Moher therefore launched her own private prosecution of her Husband citing that his behaviour was abusive, and by that she stated that his behaviour amounted to controlling and coercive behaviour.
Mrs Moher confirmed that not only had Mr Moher refused to provide her with the Get, but he has also used financial abuse as well. Mr Moher had attempted to persuade his Wife to accept less money than she had been awarded in her financial proceedings on a promise he would provide the Get. In response Mr Moher stated that he did not accept all of the charges brought against him and he had not refused outright to provide the Get. However he did accept that he had been “controlling in a number of ways which made it more difficult for [Mrs Moher] to regain control of her life”. Mr Moher pleaded guilty of engaging in coercive and controlling behaviour and received an 18 month prison sentence along with payment of a sum towards the prosecution costs.
What is clear is that domestic abuse and the increased definition of what constitutes abuse can assist a large number of individuals who are impacted throughout relationships and even after they have ended. It is heartening to see that Get refusal is being viewed as a source of controlling behaviour as it clearly places limits and restrictions on spouses, and in particular wives.
If you require any assistance in respect of divorce, financial matters or domestic abuse we at Ward Hadaway have specialist divorce solicitors who provide advice on all matters following a relationship breakdown.
Please note that this briefing is designed to be informative, not advisory and represents our understanding of English law and practice as at the date indicated. We would always recommend that you should seek specific guidance on any particular legal issue.
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