Domestic abuse in financial provision cases was highlighted as one area where reform is being considered.
What impact does domestic abuse have on a financial split on divorce at present?
Under English law, domestic abuse currently makes little difference to the outcome of most financial remedy proceedings. One of the factors for the Court to consider when making financial provision orders is conduct of the parties, if it would be "inequitable" to disregard this conduct. Following a number of cases, the threshold for personal misconduct to be taken into account is very high, such as attempted murder. Conduct is also usually only taken into account in the division of assets where there is a direct financial consequence of this conduct.
What about in Scotland?
The current law in Scotland is very similar to the current law in England on this point. The legislation (s11(7) of the Family Law (Scotland) Act 1985) sets out that the court will not take conduct into account, unless this conduct has adversely affected the financial resources of the couple, or unless (for certain claims) it would be "manifestly inequitable" to leave it out of account. As with England, these cases are extremely rare.
What reforms are suggested in England?
No set change has been proposed in the current Consultation Paper. Instead, the Government has asked for views as to whether domestic abuse (including economic abuse) should be more readily taken into account when dealing with the division of assets on divorce.
Are similar changes proposed in Scotland?
At present, there is no suggestion that law reform along these lines is proposed in Scotland, although the Scottish Law Commission is considering how best to reform civil remedies for domestic abuse, with the aim of making these clearer, more accessible and better coordinated with changes to criminal law in this area.
What are the arguments for and against?
The Consultation Paper suggests that as understanding of abuse has developed, its relevance to financial proceedings has become clearer. This includes controlling or coercive behaviour and economic abuse, which may significantly impact a victim's ability to move on from the marriage financially.
An example of this may be where one party controls the other's independence by insisting they give up employment. During the marriage they become isolated and dependent on the perpetrator. However, after the marriage those effects do not end. After divorce they may not be able to find employment or may have a significantly reduced earning capacity in comparison to their spouse. While the Court strives to achieve a "clean break" on divorce, the burden of reduced earning capacity in doing so in this example would fall to the victim rather than the perpetrator.
There is also the effect on victims of continued reliance upon their abuser after divorce, for example in cases where the Court orders spousal maintenance, where uncertainty around payment causes anxiety for the recipient, or where the onus falls on the victim to apply for enforcement in cases of non-payment.
There are also extreme cases. Should someone such as Gisele Pelicot have to share an equal split of finances with her husband? It is questionable whether this would meet the test of conduct impacting on the financial assets, either in Scotland or England.
However, legislating in a fair way to take greater account of abuse would be extremely difficult. The risks are that doing so could create a worse situation for many victims and couples.
First, if abuse is to be taken into account, how will it be proved? If "fact-finding" hearings on domestic abuse in financial proceedings are introduced, these may just increase costs and exposure to conflict for the victim, and risk "re-victimising" survivors, while also increasing the length of court proceedings.
Second, the law in England recently changed to what was termed "no-fault" divorce, when dealing with the basis upon which a divorce can be granted. A change to take more account of domestic abuse in financial matters swings the law back the other way, bringing difficult accusations of behaviour back into the courtroom and leading to increased conflict and stress.
Last (although not mentioned in the Consultation Paper), what about the risk of false allegations? If there is a financial incentive to sling accusations at a former partner, the chance of false allegations obviously increases. How would such cases be distinguished? Would the person accused have to go through a lengthy investigation to contest such claims?
We therefore await the outcomes of consultations in both England and Scotland. What is clear is that there are no easy answers for law reform in either the Scottish or English courts in this particularly difficult area.
If you require legal advice on financial remedies on divorce, our legal experts at MFMac are here to help. Contact our Family Law Team to arrange an initial consultation.
