New rules could ensure courts consider domestic abuse in separation settlements

Divorce is a difficult process, and dividing up finances is one of the trickiest and more fraught aspects. Judges tasked with deciding how to split a couple’s money and assets look at a number of things, including their earnings and how long they’ve been together.

However, it’s exceptionally rare for allegations of domestic abuse to be taken into account in these financial remedy hearings. Current laws do allow for abuse to be considered by a judge, but recent rulings have set a high bar for it to actually happen. And if it does, it’s up to the victim to prove they’ve been affected.

That could be due to change thanks to proposals that would transform this outdated approach – and broaden the new rules to cover couples who are living together but not married.

The question of whether violence, economic abuse, and coercive and controlling behaviour should be considered by judges is one aspect of what one prominent judge has called a “potentially huge” overhaul to the way these hearings are managed in England and Wales.

Campaigners say victims shouldn’t have to prove they have been affected financially – and there is already a body of evidence showing that domestic abuse leads to poorer financial outcomes. The Home Office published research in 2019 showing the time off work as a result of domestic abuse costs the UK economy £14bn a year.

Mandip Ghai, senior legal officer at Rights of Women, says the family court’s approach to domestic abuse in financial cases is “shockingly out of date”.

“Domestic abuse has lifelong impacts including on women’s ability to work and save for the future. Yet it is rarely taken into account when finances are resolved after separation,” she said.

“Recognising the impact of abuse will help courts reach fairer outcomes that address survivors’ needs and reduce the risk of unresolved financial injustice continuing after the case.”

Proving the impact

Currently the courts can consider any conduct or behaviour “it would be inequitable to disregard” when dividing assets.

This can include domestic abuse. But decisions made in previous rulings have set a high threshold for it to be taken into account: a judge must be persuaded that the abuse in question is “highly exceptional”. Family barrister Anita Mehta says doing so is “virtually impossible”.

And even if that hurdle is cleared, the person must then be able to show that the abuse has affected them financially. Again, this is rarely straightforward.

“Unless you are dealing with a case where, for example, a physical assault has meant someone is no longer able to do their job, it is very hard to demonstrate that it is the abuse that has had a financial impact,” says Anita Mehta, a family barrister.

“But common sense and research, including from the University of Bristol, now tells us that abuse invariably does have financial consequences,” she adds.

Olivia Piercy, a partner at Hunter’s Law who has spent more than two years campaigning for reform, told us: “We have to say to our clients: we know you have been raped and abused but if you try to run a conduct argument you will be unsuccessful and you may be penalised by having to pay your abuser’s legal costs.”

She says the current framework is so restrictive that if the French survivor-campaigner Gisèle Pelicot got divorced in England or Wales, her husband’s conduct – repeatedly drugging her and inviting strangers to rape her – would likely have no impact on the division of their finances.

She also said that a refusal to consider an abuser’s behaviour can lead to economic abuse continuing throughout the court process. This could mean withholding marital funds, hiding assets, breaching court orders, refusing to pay school fees and mortgages or withholding child maintenance payments.

The government’s consultation asks questions around behaviour, including to what extent abuse should influence the distribution of assets when married or cohabiting couples separate.

One solution, suggested by family law group Resolution, could be to specify domestic abuse in the list of factors a judge must consider – except when it’s fair to disregard it.

“That would shift the burden from victim-survivors having to evidence they have been financially disadvantaged – to perpetrators, who would need to show it would be unfair to take account of the abuse,” says Mehta.

High bar

In a 2024 survey, 80% of 526 family law professionals across the country agreed that domestic abuse is not sufficiently taken into account in these cases.

Yet, Piercy says, the high bar for getting behaviour considered by a judge has been set by “a pool of barristers from posh London chambers who represent very wealthy parties in big-money cases.

“They have very little exposure to domestic abuse and the long-term harm it causes,” she says. “They are not bad people but they don’t spot it and they are accustomed to saying it’s not relevant.”

Some argue that the needs of abuse victims are already accounted for under the existing criteria. As the lead judge in this kind of case, Mr Justice Peel said in a 2024 high court ruling that if a party has a diminished earning capacity, that will be taken into account and reflected in the settlement, irrespective of whether or not the cause was abuse.

Mehta says that there is weight to that view but adds: “If a judge is faced with two people with needs and not enough money to go round, then with a finding of abuse, the judge would be able to prioritise the needs of the victim over the needs of the perpetrator in a way they are unable to do now.”

Peel says it is not for the financial remedies court to “impose a fine, penalty or damages upon a party for conduct” – nor to “moralise or apportion blame in how the parties behaved towards each other”.

But Piercy says it’s important to distinguish domestic abuse from other forms of misconduct, like an affair. “This is not about having a court of morals. Domestic abuse is criminal behaviour.”