ENGLAND & WALES Trends and Developments Contributed by: Alex Carruthers, Oliver Heeks and Sian Brooks, Hughes Fowler Carruthers
• the failure of the so-called gasp factor to reflect modern understanding of domestic abuse, including the subtle, pernicious effects of financial abuse and psychological abuse; • the difficulty in proving a link between domes - tic abuse and the financial impact this has on the other spouse; and • the position in other jurisdictions – Australia’s Family Law Amendments Bill 2024, which amended the Family Law Act 1975, explicitly provides for consideration of “family vio - lence” in financial remedy proceedings and Schedule 1 to the bill contains examples of what conduct could constitute economic or financial abuse. The majority of stakeholders in the Law Com - mission’s recent scoping paper were opposed to greater recognition of domestic abuse as conduct. The chief concern was the impact on already stretched court resources and the resulting delays and increase in costs this would cause. However, other points were raised, including the following. • Section 25(2)(a) of the Matrimonial Causes Act 1973 already provides that one of the factors the court must consider is the income, earning capacity, property and financial resources of the parties. Therefore, if a vic - tim’s earning capacity was limited owing to domestic abuse, they could rely on this factor in their submissions. • Allegations of domestic abuse advanced as conduct will likely increase acrimony, thereby reducing the chances of early settlement. Introducing such allegations into proceedings could even result in provoking more serious violence by the perpetrating spouse.
The scoping paper suggests that the law would benefit from greater clarity on the following issues: • what forms of behaviour will be considered conduct (whether that be personal miscon - duct or litigation misconduct); • the impact that conduct will have on a claim for financial remedies; and • the process to be adopted when making an allegation of conduct. It will be up to the UK government to decide if they want the Law Commission to make any formal recommendations for reform. Advice for practitioners Recent case law highlights that, although there is a greater understanding of domestic abuse in financial remedy proceedings (including economic abuse and controlling and coercive behaviour), the threshold remains extremely high for this to affect the division of assets. It is therefore important for practitioners to advise their clients of the potential consequences of running an ill-advised conduct argument. If it is indeed advisable to run a conduct argument, the conduct to which it relates should be clearly set out at Section 4.4 of Form E at the onset of proceedings.
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