The Debate: Should domestic abuse influence divorce settlements?
Divorce cases involving domestic abuse are increasingly coming under scrutiny, as advocates push for reforms to how the UK legal system considers abuse and misconduct during financial settlements. This blog explores the arguments on both sides of the debate, the current legal framework, and potential solutions for creating a fairer system.
Arguments for reform: addressing the impact of abuse
1. Prevalence of abuse ignored:
Many professionals are calling for reform in how courts handle domestic abuse and divorce settlements, due to the lasting harm victims often face. Resolution, a leading group of family lawyers, found that 80% of surveyed justice professionals believe domestic and economic abuse is insufficiently considered in financial settlements. This figure rises to 87% for cohabiting couples. This highlights a significant gap in recognising of abuse’s long-term impact on victims. It often leads to settlements that do not reflect the reality of their situations.
2. Abuse extends to legal proceedings:
Abusers often manipulate the legal process to maintain control over their victims, according to Resolution. This can involve tactics designed to inflict further economic hardship or prolong litigation. Such behaviour increases the stress and trauma for the victim. Courts must acknowledge and address this during financial negotiations.
3. Unfair outcomes and public sentiment:
Critics argue that the high legal threshold for considering “conduct” results in settlements that overlook the enduring effects of abuse. This approach contradicts society’s views on the issue. Some lawyers argue that the law must align with society’s stance that domestic abuse is unacceptable. The justice system must safeguard victim-survivors from further harm.
Frank Arndt, Founder of Paradigm Family Law, points out:
- “Victims of domestic abuse often face long-term economic disadvantage including loss of employment opportunitie depleted saving and impaired credit. These financial impacts can persist long after the relationship has ended. By considering the abuse during settlement courts can provide compensation that helps address these lasting financial harm ensuring a fairer outcome for victims (long term financial impact of abuse).
- Domestic abuse often creates significant power imbalances between partner where the abuser controls financial resource leaving the victim vulnerable and dependent. Recognizing abuse during settlements could help rebalance these power dynamics by awarding victims a fairer share of assets and financial security, thereby aiding in their recovery and independence (addressing power imbalances).
- Beyond physical harm, domestic abuse can cause deep psychological and emotional trauma that affects the victim’s ability to work, earn, and maintain their standard of living. Addressing this trauma through financial settlements acknowledges the non-physical impacts of abuse and provides victims with the means to seek necessary mental health support and rebuild their lives (psychological and emotional trauma)”.
Arguments for caution: The case against broad reforms
1. Concerns over “floodgates”:
There are fears that widening the scope of “conduct” in financial settlements could overwhelm the courts with complex, subjective cases. Some lawyers warn that this could result in a surge of conduct-related claims, which the court system is not prepared to handle.
2. Resource constraints:
The family court system is already under strain, facing backlogs and limited resources. Introducing more nuanced abuse cases would require additional funding and staff. This may not be feasible without broader systemic changes.
3. Focus on need not fault:
The current approach emphasizes the financial needs of both parties and any children involved, rather than assigning blame. Supporters of this system believe that this approach allows for more equitable distribution without subjective judgments.
Frank Arndt states that there is a risk of manipulation and false allegations to gain a strategically more favourable settlement and the legal proceedings could be prolonged. He states further that it is difficult to establish clear standards and he warns:
- “Unlike clear financial metrics (such as income and asset valuation), domestic abuse and misconduct can be difficult to quantify and prove. This creates challenges in establishing consistent legal standard which could lead to inconsistent or unpredictable outcomes across different cases. Such variability may undermine public confidence in the “fairness” and reliability of the legal system.
- It has also the potential to distract from core financial needs. Introducing conduct-related assessments may shift the focus away from addressing the core financial needs of the parties and any children involved. This could result in settlements that do not adequately account for the future economic stability of either party, especially in cases where the conduct allegations become the focal point of the proceeding diverting attention from financial realities.
- It also increases legal cost and creates accessibility issues; more complex cases require more time, resource and expert involvement, all of which can lead to increased legal costs. This might limit access to justice, as those who cannot afford prolonged legal battles may be forced to settle for less favorable terms. Expanding the role of conduct in financial settlements could, therefore, disproportionately impact lower-income individuals who might not have the resources to effectively litigate their cases.
Current legal framework: A high bar for “conduct” consideration
Under Section 25 (2) (g) of the Matrimonial Causes Act 1973, the courts can consider “conduct” during financial settlement but only if it would be “inequitable to disregard.” Case law sets a very high threshold for this, requiring “obvious and gross” misconduct.
Mr. Justice Peel, the lead financial remedies judge, states that domestic abuse must be of a “high degree of exceptionality” to be considered. This limits the court’s ability to address less severe—but still harmful—forms of abuse. See also Tsvetkov v Khayrova [2023] EWFC 130 (4th August 2023) or OG v AG [2020] EWFC 52 , Mostyn J.
Other jurisdictions (Germany)
In Germany § 1611 BGB states that in order to forfeit a maintenance a willful, serious misconduct towards the maintenance debtor or a close relative (see para 1) is required. However, this requires significant physical attack constant abuse or persistent gross insults with an external impact that go beyond the continuation of normal parent-child conflicts. In addition, the consequences and effects for the person obliged to pay maintenance must be taken into account in the assessment. In OLG Koblenz, Beschluss v. 28.06.2023 – 13 UF559/22 – FamRZ 2024, 521, even a serious attack was not considered serious misconduct under the law.
Potential Solutions: Balancing fairness and practicality
Several ideas have been proposed to improve the system:
1. Procedural changes: To protect victims, Resolution has called for procedural adjustments. These include improved access to legal aid and ensuring that victims can participate safely and effectively in court without intimidation.
2. Clearer judicial guidance: Providing precise judicial guidelines on how to assess “conduct” could reduce subjectivity. This would help judges identify which behaviours qualify and how they should impact settlements.
3. Increased resources for courts: To manage complex cases, there needs to be adequate funding for the family court system. Additional resources will support judges handling sensitive abuse-related claims.
4. Legislative reform: Some advocates propose legislative changes that explicitly address how domestic abuse affects financial outcomes. While not universally supported, such changes may improve consistency and better protect victims.
Conclusion: A complex balancing act
The debate about considering domestic abuse and divorce settlements raises wider questions of fairness, victim protection, and legal system capacity. Arguments for reform are compelling, especially regarding long-term abuse impacts. Yet, concerns remain about overwhelming courts and increasing subjectivity.
Continued discussion, targeted funding, legal training, and minor legislative reform could help build a system that protects all parties in these emotionally and financially complex cases.
Reforming how “conduct” is evaluated in England and Wales requires a careful balance. We must protect victims, ensure fairness, and maintain court efficiency. While the debate continues, thoughtful reform can bring the legal system closer to just and equitable outcomes.
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📧 frank@paradigmfamilylaw.co.uk
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