The Right Side of History: Protection Against Domestic Abuse as a Key Theme of the Government Consultation into Financial Remedies

Despite our increased understanding of the societal cost of domestic abuse and the ability of the FRC to deploy s 25(2)(g) to reflect it, translating this into action to protect the victim-survivors of domestic abuse has remained low on the FRC’s list of priorities. The reason why can be answered in one word: resources.

The Law Commission’s 2024 scoping report identified that judicial opposition to greater recognition of conduct in financial remedy cases was based on ‘the practical problems this would raise in terms of stretched court resources, delays, costs, increased animosity between the parties and reduced chance of settlement’.[[1]] It is an argument familiar to those pushing exhaustively for cohabitation reform over many years: a worthy aim but the court system could not cope.

Wholescale reform of financial remedies – for married and unmarried couples – is on the horizon. The Government’s agenda is clear. The proposed reforms include delivering the Government’s manifesto commitment to strengthen the rights and protections for women in cohabiting couples as part of its wider work to tackle violence against women and girls, including domestic abuse and economic abuse.

However, with no plan to inject additional resources into the system, how will this be funded? The answer is in the Impact Assessment[[2]] produced with the consultation, in which the Government has costed their proposals over a 10-year period. The Government’s data suggests that the ‘Codification Plus’ model[[3]] will result in savings of £52.5m over 10 years, even if the threshold for conduct in financial remedy proceedings is lowered. It is proposed that these savings will fund cohabitee reform, the cost of which is estimated at £46m over the same period if the threshold for conduct is lowered.

These figures do not include the non-monetised benefits such as decreasing child poverty, decreasing the risk of financially weaker parties facing financial hardship after separation, enabling domestic abuse victim-survivors to leave abusive relationships and, fundamentally, reducing long-term public sector costs arising from providing support to weaker parties and their children. As to those, in January 2025, the National Audit office estimated that that the annual economic and social cost of domestic abuse is £84 billion.[[4]]

The Consultation’s conduct questions

The Consultation presents the legal profession and other stakeholders with a once in a lifetime opportunity to shape change and define how a party’s (mis)conduct should affect the financial outcome on relationship breakdown. The Government is clear that reform is coming and will very likely take the form of Codification Plus for married partners and a needs-based model for cohabitants. The question is whether those reforms will take greater account of conduct in the form of domestic abuse and if so, how.

Unlike the majority of the Consultation questions, the four questions relating specifically to domestic abuse[[5]] and the further four questions which deal with wider misconduct issues[[6]] are asked as open questions. It is clear the Government is engaged with understanding the extent to which conduct should be considered, how it should affect the division of assets and what impact this will have on proceedings. A typical example is Question 12. It relates to domestic abuse ‘if established’ and is engaged with impact:

To what extent should domestic abuse, if established, influence the court’s decision-making in financial remedy and cohabitation proceedings?

• It should only be considered in exceptional circumstances
• It should be considered where it has had a clear financial impact
• It should generally be considered where domestic abuse has occurred
• It should not be considered in financial remedy or cohabitation proceedings
• Other (please explain)
• [Free text]

Resolution has already suggested that one solution would be to have a separate provision in s25(2)(g) (or whichever reformed legislation replaces it) in respect of domestic abuse, ensuring that abuse is taken into account unless it is fair or equitable to disregard it. This would shift the burden from victim-survivors – who presently have to evidence the financial inequity of domestic abuse – to perpetrators, who would need to establish that it is unfair to take conduct into account. It would be a factor to be considered in every case and not just the exceptional or where there was a direct and quantifiable financial impact.

The impact of this reform could be significant, especially when coupled with the possibility of introducing a new ‘compensation’ factor compelling the court to consider any economic disadvantage suffered by a party during the marriage when deciding the approach to needs and sharing.

The crux of the matter is identified at Question 13:

If domestic abuse were more routinely considered in financial remedy and cohabitation proceedings, how do you think this should affect the division of assets between parties? For example, what principles should guide how misconduct is reflected in financial outcomes and how should this be applied in practice?

Most cases before the court are needs cases, where judges are struggling to stretch available resources between two people. We do not think it is controversial to say that with a finding of conduct, it would be open to the court to prioritise the needs of the victim-survivor.

How to deal with sharing cases is really what creates division amongst lawyers. In our view, the FRC does not need to be so squeamish about being seen to be passing moral judgment, because to ignore domestic abuse is to condone it, inadvertently or otherwise. We fail to see how it can offend common sense or justice more generally for victim-survivors to receive a greater share of the matrimonial assets. There are already examples of such outcomes. In LP v MP [2025] EWFC 473, Cusworth J reduced the wife’s sharing award by 40% to meet the justice of the case, including her ‘deplorable conduct’. In Gohil v Gohil & Ors [2025] EWHC 3646 (Fam), Williams J increased W’s notional 50% share of the matrimonial assets to just under 70% to reflect the husband’s egregious conduct over a sustained period.

Moreover, a finding of conduct may change the structure of the order in ways that would not be considered otherwise. For example, directing capitalised maintenance in circumstances where they would not usually do so because the perpetrator’s need for capital is prioritised over the need of the victim-survivor to achieve a clean break.

Whilst it is commonplace for parties to avoid enhancing the value of their assets or increasing their income until proceedings are finalised, we have all seen examples of extreme behaviour in cases where abusive dynamics are at play in the relationship. For example, perpetrators may simply stop working or prefer to destroy the value of their business than pay more to the other party. A finding of conduct will assist the court in properly examining earning capacity as opposed to income, or be bolder about drawing adverse inferences, or adding-back dissipated funds.[[7]]

If nothing else, we all know that enforcing orders is a real issue, and the lawyers involved can usually predict the cases where orders are unlikely to be complied with based on the relationship between the parties. If the court was aware of the abuse between the parties, default provisions for non-compliance could be built into the order, and/or funds could be set aside if enforcement measures are anticipated.

Leaving impact aside and considering process, Question 14 asks:

If courts were more readily able to take domestic abuse into account in financial remedy and cohabitation proceedings, what impact do you think this would have on those proceedings (for example, the length of cases, evidential requirements, costs to parties and the overall experience of victim-survivors)?

Our response is this: cases involving conduct, especially in the form of domestic abuse, are already protracted and difficult, requiring extensive case management by both the professionals involved and the court. On an anecdotal level – supported by the conclusions of the Fair Shares report[[8]] – we know that cases featuring domestic abuse and coercive relationships are often the most difficult to resolve, frequently requiring a final hearing. Whilst the court may not be adjudicating on the abuse itself, it is often those cases which involve issues of non-disclosure, dissipation, or assets tied up in complex, manipulated structures. It is those cases that require court time and resources to unravel in order to ensure that a victim-survivor can come close to a fair settlement. The issue of domestic abuse is already having an impact: taking it into account as a central feature of the case may in fact help to streamline the process, putting it as a central focus from the outset and engaging judicial scrutiny from an early stage.

In any event, as we set out above with regard to the Impact Assessment, overall savings will be achieved from reform of financial remedies even if the threshold for conduct is lowered.

Other relevant aspects of the Consultation

In consulting with the legal profession (and other stakeholders), the government seeks to identify the unintended consequences of other aspects of the proposed reforms. In tackling domestic abuse head on, the Government must ensure that the battlegrounds faced by victim-survivors are not simply shifted to other areas. Examples of risk areas in this regard are:

Question 1

Do you agree with the Government’s view that the objective for the sharing principle is to give equal benefit to the parties of matrimonial property by dividing matrimonial assets equally?

Whilst we anticipate there are many reasons that those in practice will say matrimonial assets cannot automatically be shared equally, this is particularly so in cases of abuse. It is not uncommon to see the perpetrator drain away the matrimonial assets and then argue the other party is not entitled to a share of the other assets on the ground that they are non-matrimonial.

Our responses to the consultation must ensure a mechanism remains for distributing the assets fairly in such circumstances.

Question 6

Do you agree with the Government’s view that the objective for meeting needs should be to enable both parties to transition to independence, as far as resources allow?

We anticipate that there will be concern about this proposal regardless of domestic abuse. We ask, what does a transition to independence look like without the limiting factor of ‘undue hardship’? What challenges will a victim-survivor be expected by the court to face as they move to independence? In our view, any assessment of the resources required to enable a transition to independence in abuse cases must factor in the additional difficulties faced by victim-survivors over and above those required in cases where abuse has not featured.

Question 8

Do you agree that the stages should be focused on the following:

• first consideration to the welfare of any children of the family;
• capital and income needs, including their housing and pension needs in keeping with the standard of living during the marriage; and
• where resources allow, discretionary need, in keeping with the standard of living during the marriage?

The three-tier test envisaged risks directing the court to see ‘needs’ through the lens created by the perpetrator. In circumstances where the perpetrator’s economic abuse has suppressed the marital standard of living, a platform could, arguably, be created for assessing discretionary need within that context, risking a much lower maintenance award for the victim-survivor. Further, an analysis of needs on this basis may enable yet further opportunities for a perpetrator to prolong litigation and perpetuate further abuse, giving licence to scrutinise in minute detail victim-survivors’ lifestyle and spending patterns as they attempt to evidence their lifestyle during the marriage.

What should happen in the meantime?

The reforms considered above are concerned with the outcomes of financial remedy cases for the weaker financial party and, in particular, victims of domestic abuse. The Consultation relies on the concerns raised by academics and stakeholders. The proposed reforms chime with the outcome of the 2024 Resolution survey which identified that 80% of respondents considered that domestic abuse, including economic abuse, was not sufficiently taken into account.

As we say earlier in this piece, reform is on the horizon and the likelihood is that it will include delivering the Government’s manifesto commitment to tackle violence against women and girls, including domestic abuse and economic abuse, on all possible fronts.

Until reform is enacted, the tests set out in Tsvetkov v Khyarova [2023] EWFC 130 and N v J [2024] EWFC 184 still prescribe how domestic abuse is approached. As a direct result of those decisions, we know as practitioners that FRC judges have been ruling out conduct at the first hearing almost as a matter of course.

However, the tide is undoubtedly turning. In Gohil the impact on the wife of the husband’s egregious conduct – primarily preventing her moving on with her life and acquiring an earning capacity – was taken as read, with no attempt to quantify that impact in financial terms. Yet the court was clear the wife required compensation as a consequence. Similarly, in LP v MP, there was no attempt to assess in financial terms the impact of the wife’s conduct on the remaining resources. Indeed, the husband in LP v MP had assets of about the same value at the conclusion of the marriage as he had to begin with.

We would respectfully suggest those judgments provide the building blocks to a shift in current thinking which the court and the profession should embrace now, to ensure we are on the right side of history without waiting for the Government to legislate how we get there.

[[1]]: See article ‘Principles v Resources: Conduct and the Law Commission Scoping Report’: https://financialremediesjournal.com/principles-vs-resources-conduct-and-the-law-commission-scoping-report/

[[2]]: https://assets.publishing.service.gov.uk/media/6a1eee48050971fbebf3bd8b/Regulatory_Impact_Assessment_-_Cohabitation_and_Financial_Remedies_Reform_Consultation.pdf

[[3]]: Codifying settled case law principles and introducing further targeted reforms, such as introducing legally binding Qualifying Nuptial Agreements (QNAs).

[[4]]: https://www.nao.org.uk/wp-content/uploads/2025/01/tackling-violence-against-women-and-girls.pdf

[[5]]: Questions 11 to 14.

[[6]]: Questions 15 to 18.

[[7]]: See https://financialremediesjournal.com/50-years-on-from-martin-v-martin-1976-are-add-backs-fit-for-purpose/.

[[8]]: Arrangements for divorcees reporting domestic abuse were far more likely to have involved contested court proceedings, with 17% of female survivors reporting that their case had been determined by a judge and a further 5% settled after financial proceedings have begun. This compares to only 4% determined by a judge and 3% settled after proceedings began for other women.