Domestic Abuse: Exceptional Or Everyday?

The Domestic Abuse Commissioner's report tells us that domestic abuse is everyday business in the family courts. But, for the conduct of one of the parties to affect financial remedies outcomes upon a divorce or a dissolution of a civil partnership, it has to be conduct of a highly exceptional nature. The fact that the everyday is usually not exceptional means that domestic abuse is being regularly and systematically excluded from the court's consideration of what is a fair financial outcome.

The October 2025 report, ‘Everyday business: Addressing domestic abuse and continuing harm through a family court review and reporting mechanism', is focused on private children law cases but it reveals that domestic abuse is an issue in up to 87% of such cases. Where it was an issue in the cases surveyed, 56% of cases involved issues of physical abuse, 76% involved issues of psychological or emotional abuse, and 20% involved issues of economic/financial abuse.

Despite it being such a widespread issue, the report takes aim at how abuse is frequently minimised by those working within the family courts (judges, social workers and lawyers included) as mere bickering between separating couples. Victims (or victim-survivors) are discouraged from raising allegations because there is a high threshold before it is taken into account in child arrangements. All of this is contributing to leaving victims feeling isolated, helpless, like nobody has listened to or understood their experiences; and it is leading to unsafe court orders which expose victims and children to continuing harm.

There is no doubt that there have been some steps forward in recent years which impact positively on how the family courts handle domestic abuse, including the introduction of Domestic Abuse Protection Notices and Orders, 'special measures' which prevent victim-survivors being cross-examined by the accused, judicial training, and the introduction of Qualified Legal Representatives; but experiences greatly differ and wholesale cultural and procedural change is needed. 

In financial remedy cases, conduct is only taken into account if, in the words of the statute, it would be "inequitable to disregard it". The court has, in the case law to date, interpreted this as setting a high or exceptional bar (the 'gasp factor') in order to limit the number of cases in which conduct can be considered and treated as an element of the claim.

However, domestic abuse is not, as the Domestic Abuse Commissioner's report highlights, an exceptional issue. It can be a depressingly everyday issue. How can we, therefore, say it is equitable to disregard it unless it is exceptional? Domestic abuse is insidiously harmful and often has devastating and long-term harmful effects upon the victim-survivors and children who are caught in the middle. 

The Domestic Abuse Commissioner's report rightly identified that in respect of financial remedy cases the substantive law, as expressed by case law including the recent High Court decisions of Tsvetkov v Khayrova and N v J, creates substantial barriers to be able to claim that domestic abuse is conduct which would be inequitable to disregard.

We need to do much better to protect victim-survivors and make them feel heard and their experiences understood. We are currently in a situation in financial remedies cases where the mere mention of bad conduct causes disconcerted mutterings in the court room, typically with opposing counsel and/or judges attempting to close down explanations of the alleged conduct because any mention of it is seen as making a conduct claim through the back door.

In N v J, my victim-survivor client had to seek permission to be able to raise conduct. He was criticised for not having raised conduct in his Form E (despite having done so) and a significant costs order was made against him (despite him having no money) when it was held, at a case management hearing, that he did not need to run conduct because his claims could be fairly met without considering the impact of the long standing abuse.

How can a victim-survivor ever feel that an outcome is fair if, during their entire financial remedies claim, their experiences, even where they are relevant to their future health, medical needs, future earning capacity, and much more, cannot be told? 

In N v J Mr Justice Peel held that conduct did not need to be raised because 'needs are needs', but they are not. The assessment of needs is hotly debated. By way of an example, significant court time is spent debating housing needs, citing reasons such as desirability or ease of transport. Is it right that a victim-survivor isn't able to say, "I need to be somewhere safe as I have been a victim of domestic abuse", yet we take time to debate whether someone should live 5- or 10-minutes' walk from transport?

I have regularly sat in court with victim-survivors who have had panic attacks out of fear of being in the same room as their abuser, who can't follow what is happening because they are overwhelmed but are not allowed to explain why. Many more give up litigation because of the pressure and the ongoing abuse that the process can perpetuate (breaches of court orders, non-payment of maintenance, non-disclosure of assets and long delays all designed to wear down the vulnerable can all be too much).

Domestic abuse is an everyday issue, so the everyday culture needs to be one of listening to, understanding and protecting victims-survivors and not shutting them down or denying them access to fair justice.

First published by Today's Family Lawyer on 23 October 2025.

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