Making abusers pay
Can we do more to help when a relationship breaks down?
Four out of five lawyers believe that courts should take more account of domestic abuse when making financial awards on divorce and separation. “Domestic abuse”, for these purposes, includes taking advantage of delays in the court system, failing to provide disclosure, breaching orders and dragging out mediation to wear down the other party.
But the lawyers who think their clients deserve more money tend to act in cases where the weaker party — often female — is left with not enough to live on. A different view may be held by those who represent very wealthy individuals, generally men.
Should judges be required to take more account of conduct? Do we need new legislation? Or a different approach by High Court judges, many of whom will have acted for rich clients before joining the bench?
Perhaps reform would be counter-productive, given that the courts are overstretched and that most separating couples do not receive specialist legal advice.
A working party set up by the family lawyers’ group Resolution spent 18 months considering the issues. They had no difficulty identifying the problem — but could not agree on a solution.
I discuss the reasons — and the risks — in my latest column for the Law Society Gazette.
Domestic abuse, ‘all the circumstances’: disposal of financial provision claims
I don’t think Resolution has got the balance right in all this; and I am sure the judges have not. The law is that where one or other or both parties to a marriage or civil partnership apply for money from the other spouse/civil partner the Family Court must ‘have regard to all the circumstances of the case’ and to any child of the family under 18. ‘In particular’ the court ‘shall… have regard to’ eight factors in making a financial order which includes ‘conduct’ including the variety of domestic abuse.
The statutory sources for this are Civil Partnership Act 2004 and Matrimonial Causes Act 1973. Both say: the court ‘must in particular’ [etc, as above] have regard to… (g) the conduct of each civil partner [or spouse], if that conduct is such that it would in the opinion of the court be inequitable to disregard it’. I can’t see what could be clearer than that. Yet Mr Justice Peel (‘Peel J’) seems to think he can lay down the law on this (in N v J [2024] EWFC 184, [2024] WLR(D) 333 (15 July 2024)) ‘in accordance with both statute and case law, [‘conduct’ is] only to be taken into account if it is of a highly exceptional nature (I’ve added the italics in both quotes)’?
Parliament says one thing, judges say another. To make their job easier, I fear, those judges overlook that it is the Act of Parliament which rules them not the other way around (and I fear the Resolution report goes with the judges rather than statute law).
What Peel J muddles up is statute law and ‘case law’ (where a judge must follow another judge – ie precedent). Precedent does not apply here. Courts have a very wide discretion as to options for redistribution of family finance. But if a statute – ie Parliament – says they must do something, so they must. Factor (g) – ie ‘conduct’ – is mandatory (Parliament says judges ‘must’). Inconvenient though it may be, ‘conduct’ can only be ignored if it would be fair (ie not ‘inequitable’ to do so). Sorry, too many negatives. What the statute is saying is that a court must take into account conduct unless the judge decides it can be ignored. That means if courts followed the law in each case they must say in terms that ‘conduct is irrelevant here’.
And a judge must explain (if only briefly) why the court decides to ‘disregard it’. Peel J gets the judge’s job the wrong way around. An anecdote illustrates this. At a meeting of authors of a text-book a few years ago, one judge huffed and puffed at the absurdity – as he saw it – of claims under Protection from Harassment Act 1997. Mrs Justice Bracewell, who chaired the meeting, quietly commented: ‘But, you do have to try the claim, you know’. As Parliament sees it, the same must be said of ‘conduct’ if it is alleged. A passing comment: harassment or assault damages could be a guide for compensation under (g), by the way.
Back to N v J [2024]. Peel J holds that what he says of conduct, as he puts it, ‘remains the law’. Awareness of the ‘pernicious effects’ of domestic abuse ‘does not lower the conduct hurdle to be surmounted’ in financial provision cases’. That is not the law he is appointed to uphold. The law is as set out by Parliament. A judge cannot alter that. It remains for judges to find a practical means – ie court procedure – for exercise of their discretion. Peel J supports his view from 2006 case law; but society and the law has moved on since 2006. Domestic Abuse Act 2021 must surely influence modern judicial thinking? A problem is that the courts have not found an effective means procedurally to deal with people who say (factor (g)) that domestic abuse applies. What Parliament says, calls for a clear judicial answer which supports the law.
Just read your piece in the Law Soc Gazette and of your preference for 'victim' (unable to get off a fence Resolution say 'survivor-victim' which, as you say is unfortunate: many who have been subject to abuse may never survive). But 'victim' implies it has been proved that that person has been abused.
Both terms are inaccurate and should not be used by lawyers: at least not till after abuse has been proved. If abuse is equally apportioned are both or neither 'victims'? Why not neutral terms, like partner or spouse, or - better still - claimant which works for all forms of family breakdown process including protection from harassment and other assault damages claims.
Better still, let's not get hung up on terminology and get the existing laws we have working properly which my previous comment suggested family judges are shirking.