Domestic abuse and financial settlements on divorce
Peel J’s judgment in N v J [2024] EWFC 184 focuses on the hot topic of whether domestic abuse can be conduct which should be taken into account when making financial orders on divorce. His answer is essentially no/almost never: “I struggle to envisage many situations where personal misconduct will have a material impact on the ultimate evaluation”. His struggle flows from his conclusions that:
- The law, accurately understood, is that conduct can only be relevant where it has an “identifiable financial impact even if it is not always easily measurable” and there must be “a causative link between the conduct and the financial consequences” (paragraph 37); and
- In those “very rare” cases where conduct does have a financial consequence, it “can and ordinarily will be taken into account by reference to the conventional criteria regardless of whether domestic abuse has in fact taken place” - what matters is that the need exists, not how it arose (paragraph 38(ii)).
I want to explore a particular aspect of Peel J’s reasoning relating to the first limb: that it would be “highly unusual” to consider a factor which has no financial consequences when deciding what order to make “under the terms of an Act which is directed to reordering the finances of the parties” (paragraph 38(i)) and that it is hard to see “how personal misconduct, with no adverse financial consequence, could readily be quantified in a principled manner”.
I suggest that, in fact, the court often considers factors with no identifiable financial impact when assessing financial remedy awards, despite there being no “principled manner” of doing so. I also suggest that whilst the nature of the financial harm resulting from economic abuse means it will rarely be possible to satisfy Peel J’s causation test, that does not mean the court should ignore the reality that domestic abuse often has damaging financial consequences.
The jurisprudence recognises that needs exist on spectrum. As King LJ set out in Brack v Brack [2018] EWCA Civ 2862 “even in a case where the court considers a needs-based approach to be fair, the court will… retain a degree of latitude when it comes to deciding on the level of generosity or frugality which should appropriately be brought to the assessment of those needs”. Or as Mostyn J memorably put it in Cummings v Fawn [2023] EWHC 830 (Fam): “Imagine that the discretionary range is a line of books on a shelf bracketed left and right by book-ends... The right book-end represents a comfortable, perhaps even luxurious, life-style. The left book-end represents a spartan lifestyle catering for not much more than essentials. The space in between is the discretionary range”.
The generosity or frugality with which an applicant’s needs will be met depends on a variety of circumstances, including those set out in s25 MCA 1973. Some of these, such as the parties’ standard of living and the resources available to them, are financial. Others are not, including the duration of the marriage, the extent of non-financial contributions, and the existence of a nuptial agreement (as distinct from its terms, which would be a financial factor). Yet they are routinely explored in judgments and factored into overall awards, despite there being no “principled manner” of quantifying their impact.
As Peel J explained in HD v WB [2023] EWFC 2, “in the right case, a minimal award to meet basic needs may be appropriate, but it must depend on all the factors including the PNA [pre/post-nuptial agreement], resources, length of marriage, contributions and lifestyle. The courts have shown themselves to be flexible on these matters, consistent with the discretionary exercise”. In that case Peel J concluded that whilst the parties would not be held to the terms of their nuptial agreement as it did not meet the husband’s needs, it would be a “limiting factor” in assessing his needs, and that the award would likely have been “significantly higher” absent an agreement. However, no “principled manner” for quantifying the PNA’s impact was set out.
Peel J took the same approach in AH v BH [2024] EWFC 125 where again a nuptial agreement was found not to meet need. Alongside financial factors including husband’s pre-marital resources and the existence of two young children for whom the wife would be the primary carer, Peel J explicitly took into account factors without identifiable financial consequences:
- The wife had signed a nuptial agreement;
- The marriage was relatively short;
- The wife “contributed fully to the marriage as wife and mother”.
Again he commented that but for the PNA, the wife’s needs-based award would likely have been greater, but again no “principled manner” for quantifying the difference was proposed.
Other recent examples of factors without direct financial consequences being taken into account in determining a financial award include:
- In LMZ v AMZ [2024] EWFC 28, relevant factors in concluding that the wife should receive lifelong maintenance included that the marriage had lasted 20 years and that given the husband’s age (93) the wife (who was 45) had played a “very significant” role in caring for the parties’ children.
- In CMX v EJX (French Marriage Contract) [2022] EWFC 136, Moor J took into account that this was “a long marriage where the wife made a full and complete contribution in every respect” in holding that “any award based on need should be generous and complete”.
- In E v L [2021] EWFC 60, Mostyn J held that the short duration of the marriage limited the wife’s housing needs, saying “the duration of the marriage impacts forcefully and directly on the assessment of need”.
In none of the cases was a “principled manner” for quantifying the impact of these factors set out.
In Part III cases judges take into account parties’ connection with this jurisdiction. As Moor J explained in MA v SK [2025] EWHC 887 (Fam), “the award may be the same as it would have been under the 1973 Act, if the English connections are very strong but, equally, it may not be. It all depends on the circumstances of the particular case”. There the wife’s “limited” connection with England meant he took a “needs light” approach. More recently in Pierburg v Pierburg [2022] EWHC 2701 (Fam) Moor J made clear that had this been “an entirely English case” he would have made a more generous award. Yet no “principled manner” of quantifying the discount for the limited connection has been offered.
Having said all of the above, it is nevertheless important to recognise that domestic abuse does have financial consequences, but that it will rarely be possible to prove a “causative link” to the abuse. Women’s Aid’s 2019 report ‘The Economics of Abuse’ set out that “domestic abuse, emotional physical and economic, has a long lasting impact on a woman’s economic resources”, and described “the long-term impact domestic abuse can have on survivors’ employment prospects, with respondents reporting reduce confidence and trauma affecting their ability to work”. Surviving Economic Abuse identify that 95% of cases of domestic abuse involve economic abuse and that “the impact of economic abuse makes rebuilding lives challenging”.
In N v J, Peel J held that it was “very difficult to be satisfied” that J’s behaviour “caused N’s mental health to decline” (emphasis in original), adding: “it does not seem to me that the nexus between J’s behaviours and N’s mental health decline is ‘obvious’ for there may have been many factors at play”. Such an approach cannot engage with the reality of the insidious and complex ways in which domestic abuse affects a victim-survivor’s economic future. Could a woman ever show that her husband’s belittling behaviour caused her not to be more ambitious in her career? Could she prove that her chances of entering a new relationship have been damaged by the abuse she suffered?
In children cases, the court starts from the point that “domestic abuse is harmful to children, and/or puts children at risk of harm" (Practice Direction 12J). There needs to be a similar recognition in financial remedy cases that domestic abuse has a long-term financial impact on victim-survivors that will rarely be possible to quantify or prove by way of a “causative link”. In practice, family law judges frequently take into account a range of factors, some financial and some non-financial, in determining how generously or frugally needs should be met. There is no logical reason why domestic abuse cannot and should not be treated in the same way.
Peel J’s underlying concern may be the impact that taking domestic abuse into account would likely have on the court’s resources (see paragraph 38(ix) of N v J). Yet one wonders why court time can be spent examining the circumstances in which the parties entered into a nuptial agreement to see whether it should operate as a “limiting factor”, or assessing whether a woman “contributed fully to the marriage as wife and mother” to see if a more generous approach is warranted, but not on considering whether there has been domestic abuse.