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: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, with the figure rising to 87% for cohabiting couples. This highlights a significant gap in the recognition of abuse’s long-term impact on victims, leading to settlements that may not reflect the realities 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 the litigation, exacerbating the stress and trauma for the victim. Addressing this would require the courts to acknowledge and mitigate these behaviors 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, contradicting society’s views on the issue. Some lawyers argue that the law must align with society’s stance that domestic abuse is unacceptable, and ensure the justice system does everything possible to safeguard victim-survivors from further harm. Frank Arndt , Founder of Paradigm Family Law points out that :
- “Victims of domestic abuse often face long-term economic disadvantages, including loss of employment opportunities, depleted savings, and impaired credit. These financial impacts can persist long after the relationship has ended. By considering the abuse during settlements, courts can provide compensation that helps address these lasting financial harms, ensuring a fairer outcome for victims (long term financial impact of abuse).
- Domestic abuse often creates significant power imbalances between partners, where the abuser controls financial resources, 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 such changes could lead to a surge in conduct-related cases that the court system is not adequately equipped to handle.
2. Resource constraints:The family court system is already under strain, with significant backlogs and limited resources. Introducing more cases involving nuanced assessments of abuse would require additional funding and staff, which may not be feasible without broader systemic changes.
3. Focus on needs, not fault:The current approach emphasizes the financial needs of both parties and any children involved, rather than assigning blame. Proponents of this system argue that focusing on needs ensures a more equitable distribution of assets without complicating proceedings with subjective interpretations of misconduct.
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 standards, 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 proceedings, diverting attention from financial realities.
- It also increases legal cost and creates accessibility issues; more complex cases require more time, resources, 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 settlements, but only if it would be “inequitable to disregard.” Case law has set a very high threshold for what qualifies as conduct that should be factored into financial decisions, requiring “obvious and gross” misconduct.
Mr. Justice Peel, the lead financial remedies judge, has emphasized that domestic abuse must be of a “high degree of exceptionality” to be taken into account during financial settlements. This restricts the courts from considering 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 attacks, 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 also be taken into account in the required assessment (see OLG Koblenz, Beschluss v. 28.06.2023 – 13 UF559/22 – FamRZ 2024, 521, where despite a serious attack was not classified as serious misconduct).
Potential Solutions: Balancing fairness and practicality
Several ideas have been proposed to address the shortcomings of the current system:
1. Procedural changes: To protect victims during proceedings, Resolution has called for procedural adjustments, including improving access to legal aid and ensuring that victims can participate safely and effectively in their cases without facing intimidation.
2. Clearer judicial guidance: Providing more precise guidance on how judges should apply discretion when considering “conduct” could help reduce concerns about subjectivity. This would involve clarifying what types of behaviors qualify as misconduct and how they should be factored into settlements.
3. Increased resources for courts: To handle an increase in case complexity, there needs to be adequate funding for the family court system. This would allow courts to process cases more efficiently while providing the necessary support for judges dealing with sensitive issues like domestic abuse.
4. Legislative reform: Some advocates are pushing for broader legislative changes that would explicitly address how domestic abuse affects financial settlements. While not universally supported, such reforms could provide clearer, more consistent outcomes and ensure that victims of abuse receive the protection they deserve.
Conclusion: A complex balancing act
The debate over whether and how to consider domestic abuse during divorce financial settlements reflects broader questions about fairness, victim protection, and the practical limitations of the legal system. While the arguments for reform are compelling, particularly in recognizing the lasting impact of abuse, there are valid concerns about overwhelming the courts and creating a system that is too subjective.
Further discussions, supported by additional funding, training, and perhaps legislative tweaks, could pave the way for a system that better addresses the needs of all parties involved in these emotionally and financially complex cases.
Reforming how “conduct” is considered in financial settlements in England & Wales requires a careful balance between protecting victims, ensuring fairness, and maintaining a manageable workload for the courts. The debate is far from over, but with continued dialogue and thoughtful reforms, the legal system can move closer to just and equitable outcomes.
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