The consultation of ‘A fairer end to relationships’ considers whether the law governing financial remedies on divorce, and the rights of cohabitants on separation, remains fit for purpose. It explores a number of possible reforms, including:
- Placing key principles developed by the courts into legislation;
- Introducing a framework for financial claims between cohabitants; and
- Reconsidering how domestic abuse should be treated within financial remedy proceedings.
One of the most significant issues raised by the consultation is whether the current law does enough to protect victims of domestic abuse. Although the consultation recognises that survivors, particularly those who have experienced economic abuse and coercive control , can be left at a financial disadvantage after separation, it remains cautious about how far the law should change.
While there is a strong argument that the financial impact of abuse should be reflected more consistently in financial settlements, others question whether allegations of domestic abuse should affect the division of assets unless the abuse has caused a clear financial loss. The consultation therefore raises an important debate about how fairness should be achieved in financial remedy cases.
How is domestic abuse considered under the existing family law framework?
One of the strengths of the consultation is that it recognises domestic abuse is not limited to physical violence. It acknowledges that abuse can take many forms, including coercive and controlling behaviour, economic abuse and financial control.
In practice, these forms of abuse can have long-lasting financial consequences. An abusive partner may prevent the other from working, control access to money, build up debt in their name or conceal family assets. Those patterns of behaviour do not necessarily stop when the relationship ends. Instead, they can continue throughout the court process, with financial proceedings becoming another means of exercising control.
As practitioners know, this type of abuse is often difficult to prove, particularly where there has been no police involvement or where the victim has not recognised the behaviour as abusive until much later.
Under the current law, financial remedies are governed primarily by the Matrimonial Causes Act (MCA) 1973. Whilst Section 25 of the MCA 1973 requires courts to consider “conduct”, the threshold is exceptionally high.
Misconduct is generally only relevant where it would be “inequitable to disregard”, a standard which has become associated with the so-called “gasp factor”. This threshold requires conduct to be so extreme that it would shock the court if ignored. For instance, if one spouse deliberately injured the other to prevent them from regaining employment in their field. As a result, even serious domestic abuse rarely influences financial outcomes unless it has an obvious and measurable financial consequence.
The consultation accepts that this approach may work unfairly against victims. It acknowledges that abuse can have a profound effect on a person’s earning capacity, housing needs, childcare responsibilities and long-term financial independence. Many survivors leave relationships with significant legal costs, disrupted careers and ongoing mental health difficulties, all of which affect their ability to become financially secure after separation. Despite this, those wider consequences are not always reflected in financial remedy awards.
The consultation also recognises something that many family practitioners encounter regularly: litigation itself can become another form of abuse. It is not unusual for perpetrators to delay providing disclosure, refuse to engage in negotiations or make repeated applications that prolong proceedings unnecessarily. Often this has the effect of increasing legal costs and placing additional emotional and financial pressure on the victim in the hope that they will eventually accept a less favourable settlement. Although the court can make costs orders where there has been litigation misconduct, those orders are relatively uncommon and rarely compensate a party for the full financial burden they have incurred.
What could a new domestic abuse law look like?
Rather than replacing the current law entirely, the Government proposes what it describes as a “codification-plus” model. The aim is to place established legal principles, such as needs and sharing, onto a statutory footing to improve certainty and consistency.
Learn more about the Government’s proposals to divorce finances reform.
The consultation also proposes clearer definitions of matrimonial and non-matrimonial property, a more structured approach to assessing financial need, greater recognition of qualifying nuptial agreements and, perhaps most significantly, a new statutory framework allowing certain cohabitants to bring financial claims when relationships end.
When it comes to domestic abuse, however, the consultation is noticeably more cautious. Instead of proposing legislative reform, it asks whether the law should change and invites views on several key issues. These include whether domestic abuse should be taken into account more readily when dividing assets, whether only abuse that causes financial harm should be relevant, how any such approach would work in practice, and whether the current “gasp factor” threshold remains appropriate.
The consultation also suggests that whatever approach is ultimately adopted should apply consistently to both married couples and eligible cohabitants for the new proposed rights. This is particularly significant because cohabitants currently have far fewer legal protections despite evidence showing that they can experience domestic abuse at similar, or even higher, rates than married couples. In practice, an unmarried victim who is not the legal owner of the family home may have very limited rights to remain there after separation, whereas a married spouse would benefit from matrimonial home rights. Addressing that imbalance would represent a significant step forward.
Do proposals to protect victims of domestic abuse go far enough?
The consultation undoubtedly marks progress by recognising that domestic abuse is also a financial issue rather than simply a criminal or safeguarding matter. Acknowledging the lasting economic consequences of abuse is an important shift in itself, particularly given that financial remedy law has historically focused on conduct only in exceptional circumstances.
That said, the consultation is noticeably cautious. It identifies the shortcomings in the current law but stops short of proposing any firm legislative change. Instead, it asks consultees whether reform is needed and, if so, what that reform should look like. As a result, victims are still left without any certainty that domestic abuse will have a meaningful impact on financial outcomes. Equally, many practitioners have expressed concern that investigating allegations of abuse within financial remedy proceedings could increase both costs and delay if not carefully managed.
From a practical perspective, the difficulties are easy to see. Many victims have spent years without access to family finances, have been prevented from working or have had no involvement in financial decision-making. It is also common to encounter cases where one party has accumulated debt in the other’s name, dissipated assets or exercised complete control over household finances.
When proceedings begin, the abusive partner is often in a much stronger financial position, with greater knowledge of the assets and significantly more resources to fund litigation. Even where excessive or reckless spending has contributed to the financial difficulties, the court is often reluctant to criticise spending choices unless the conduct meets a particularly high threshold.
The reality is that many victims settle because they simply cannot afford to continue. Delays, repeated disclosure requests and unnecessary applications all increase legal costs, and the emotional strain of prolonged proceedings can be considerable. Although judges have case management powers to prevent abuse of the process, the financial imbalance between the parties often places victims under significant pressure to compromise.
Another issue the consultation leaves largely unanswered is how allegations of domestic abuse would be proved. If abuse is to become more relevant when determining financial remedies, there will need to be clear guidance on the evidential threshold. Victims should not have to relive traumatic experiences unnecessarily, but equally the court will require a fair and workable process that avoids lengthy satellite litigation.
Judit Kerese, family lawyer in our family law Cheltenham office, explains:
“The consultation also misses an opportunity to address economic abuse more directly. Although the Domestic Abuse Act 2021 recognises economic abuse as a form of domestic abuse, financial remedy law has not yet caught up.
“Economic abuse can result in significant and lasting financial disadvantage, including the depletion of matrimonial assets, damaged credit records, lost employment opportunities and an inability to build financial independence. While the consultation acknowledges these issues, it does not propose any specific mechanism requiring courts to compensate victims for those losses.”
The proposals concerning cohabitants are perhaps the most ambitious aspect of the consultation. Current law provides very limited financial protection for unmarried couples, despite the growing number of families choosing to live together without marrying. Introducing a statutory scheme for financial claims would undoubtedly improve the position of many victims. However, the proposed eligibility criteria may still leave some vulnerable individuals without a remedy, particularly where relationships fall outside the statutory definition.
Should there be a reform to how domestic abuse is considered in financial proceedings on divorce?
The consultation is an important step, but there is scope for more ambitious reform. One option would be to introduce a clear statutory provision confirming that domestic abuse, including economic abuse and coercive control, is a relevant factor when determining financial remedies. This would move away from the outdated “gasp factor” approach while recognising that abuse often has lasting financial consequences even where those consequences cannot be precisely calculated.
There is also a strong case for giving greater weight to economic abuse specifically. Courts should be encouraged to consider interrupted careers, reduced earning capacity, accumulated debt, pension disadvantage and long-term financial dependency where these have resulted from abusive behaviour.
Procedural reform is equally important. Stronger case management, earlier identification of issues, more effective costs sanctions for litigation misconduct and continued judicial training on coercive control could all help prevent financial proceedings becoming another vehicle for abuse.
Finally, any reform must be supported by improved access to legal advice and representation. Without that, many victims will continue to settle cases because they lack the resources to pursue a fair outcome, regardless of what the substantive law provides.
If you are at immediate risk of domestic abuse, please call the National Domestic Abuse helpline on 0808 2000 247 or the police on 999.
You can also seek support from expert family lawyers who can help guide you through the process of separating from the perpetrator, and there are court ordered injunctions that can be actioned to prevent certain behaviours, such as a non-molestation order or an occupation order.
Keep reading…
Navigating divorce after an abusive marriage
