The law is failing victims and survivors because it is turning a "blind eye" to the long-lasting and severe financial consequences of being in an abusive relationship, a new study warns.
The law should be reformed to make domestic abuse and its impacts on the victim-survivor a specific consideration when dividing financial assets, enabling awards to be enhanced.
This is only currently taken into account in rare and extreme cases in family law when assets are redistributed. The study says downplaying the financial impact of abuse creates an opportunity for perpetrators to continue abuse through the legal process.
The research , by Ellen Gordon-Bouvier, from the University of Exeter, says there is a need for a more responsive approach from the family justice system – one that acknowledges the importance of access to material resources to aid recovery from abuse. Making adjustments to financial settlements is one way that the law can try to reverse the impacts of an unequal marital relationship.
It should be possible to measure detriment in not only economic terms but also psychological or physical impacts.
To achieve fairness, the presence of domestic abuse is a relevant factor that must be considered by the court, even if it is ultimately determined that its presence should not impact the final award.
A finding of domestic abuse should ordinarily mean that the victim-survivor's needs are given priority over those of the perpetrator.
Dr Gordon-Bouvier said: "The family justice system must change its approach if it is to fulfil its commitment to tackling domestic abuse and its impacts. Post-divorce asset division should be viewed as a means of ensuring that victim-survivors can recover from abuse. Of course there are inherent challenges involved in taking greater account of abuse when dividing assets.
"In its duty towards victim-survivors of domestic abuse, the state must respond in a holistic manner, which includes taking the presence of abuse into account when dividing assets on divorce and considering its impact on victim-survivors. The current stance, in which domestic abuse is ignored or subjected to very high thresholds for consideration is an example of the state failing victim-survivors.
"I am not arguing that financial remedies law should be the only or indeed the primary state response to domestic abuse. However the court's jurisdiction to divide assets upon divorce represents an important source of material security to enable victim-survivors to more on and recover from an abusive relationship."
Under section 25(2)(g) of the Matrimonial Causes Act 1973 ('MCA'), the court can take into account the parties' conduct only where "it would in the opinion of the court be inequitable to disregard it", and the study says the courts have tended to interpret this narrowly.
Dr Gordon-Bouvier said: "Acknowledging the increased resources needed to recover from domestic abuse does not amount to punishing the perpetrator. It is simply a reflection that it would not be fair to divide the assets in a way that does not acknowledge what happened during the marriage and the long and short-term impacts of this. It also acknowledges that, in many cases, particularly in the case of economic abuse, that the perpetrator has derived a direct benefit from the abusive behaviour, predominantly through failing to share resources, and that this benefit should be corrected when the parties divorce."
The study says where possible, orders requiring the perpetrator to make periodical payments or pay a lump sum in instalments should be avoided in favour of a clean break, as this leaves the victim-survivor vulnerable to the perpetrator defaulting.
