A Fairer End to Relationships: domestic and economic abuse

When it comes to the Government's consultation, A Fairer End to Relationships, few issues raise more fundamental questions about fairness in the justice system than the treatment of domestic abuse.

The consultation expressly recognizes concerns that domestic abuse is not sufficiently reflected within current financial remedy proceedings. Unlike other areas, however, the Government has not advanced a detailed model for reform but is instead seeking views on whether domestic abuse should be given greater weight within financial remedy and cohabitation proceedings and, if so, how that should operate in practice.

It asks whether the current approach to misconduct remains appropriate and whether the high hurdle test that must be satisfied before conduct is taken into account should be abandoned. There is currently a conflict in the case law, with one approach requiring both that the high threshold be met and that there be a direct financial consequence, while the other recognizes that serious coercive and controlling behaviour can influence outcomes even where the financial consequences are not easily measurable. In that context, conduct has been described as something 'through which the court had to view the case'. 

We support the introduction of law reform in this area and are of the view that the current high test should be removed. The court should have a positive obligation to consider the impact of domestic abuse, which can serve as a lens through which the outcome is assessed. In addition to giving views on that issue, we have also been invited to comment on its wider practical considerations. 

To address judicial concerns about opening the floodgates and to deal with wider fairness issues, we support reform in relation to interim maintenance and measures that provide easier access to funds for living expenses and legal fees, particularly where there are identifiable marital assets. We also call for the current high test required for assets to be added back to be modernized, to protect those who do not have control over assets from actions taken by the other party that have unfairly dissipated marital funds. These reforms would not only address unfair outcomes but could also alleviate the need for many interim applications about these issues. 

For me, some of the most difficult questions raised by the consultation concern cohabitants and domestic abuse.

Many of the most financially vulnerable families live in unmarried families. To achieve recognition of marriage, the proposed cohabitation financial regime is deliberately narrower in scope of outcomes. What is therefore needed is a mechanism to ensure that the people (and their children) who are unmarried are still protected by their needs also being considered through the lens of the impact of the abuse suffered during the relationship prior to separation or death.

The Withers view

Shaping family law has always been a core part of our DNA in the Withers family team in London and in our family law offices in Hong Kong, Singapore, New York and Los Angeles. Debating the proposals and the overlapping issues which they cover and responding to this consultation is important for us, because it has vital implications for everyone who needs support from the family law justice system in England and Wales.

The consultation is ambitious, but the detail will matter. Reform must be clear enough for the public to understand, flexible enough for Judges to achieve fairness, and protective enough for children, economically weaker partners and victim-survivors of abuse.

The consultation is also a reminder that relationship planning is for everyone: nuptial agreements, cohabitation agreements, wills, pension advice, tax planning and early legal advice will remain important for all couples (married or unmarried) as the law evolves.