Domestic Abuse: Are We Doing Enough?

October is Domestic Abuse Awareness month. The challenges, and multifaceted nature, of domestic abuse is becoming increasingly evident and, arguably, prevalent in society.

Domestic abuse can affect anyone, no matter how 'secure' they may look to the outside world. Ostensibly 'successful' individuals can be carrying hidden burdens and feel even more nervous about seeking help.

2.3 million people – of which around 70% were women – were estimated to be victims of domestic abuse in England and Wales in the year ending March 20241¹. That is unlikely to demonstrate the true extent of the issue as statistics are typically reliant on victims reporting abuse. Plus, there are those who are indirectly impacted. Being exposed to domestic abuse in childhood is child abuse.²

Individuals can be reluctant to admit, or have not been allowed to admit, they have suffered such abuse. During divorce proceedings abuse and the impact it has had, and may well have in the future, may only become apparent months into the case.

Is our family justice system able to recognize the true impact of that, especially in the light of recent judicial guidance as to when and how perpetrating domestic abuse could be considered a relevant conduct³ issue pursuant to s25(g) of the Matrimonial Causes Act 1973?

If one party has belittled, or physically harmed, another party to the degree they have lost all self-confidence, that may impact the victim's ability in multiple ways, for instance being able to maximize their earning capacity post-separation. Such abuse may not reach the high bar required to 'plead conduct'. The connection between the domestic abuse and financial consequence may not be sufficiently clear and capable of quantification.

Impact within the legal process

A financially stronger party threatening to 'destroy' their opponent (i.e. their spouse, former partner or parent of their child) through litigation encourages the economically weaker party to settle for less than they are entitled to for fear of the consequences of ongoing litigation. The safety-net/sanction for this is lacking. Our family law system needs to accommodate the true impact of domestic abuse issues, make the perpetrators accountable, disincentivize such tactics and behavior and meet this injustice head on.

What some might call a toxic media culture adds further harm. Certain press outlets may delight in telling tales of 'wrongly accused' people in powerful positions (nearly always men). Yet fewer journalists are willing to present a story through the eyes of the victim. Such an attitude seeps into wider aspects of society, not least family legal matters. It is heartening that the family court recently granted a woman permission to publish media articles about her experiences of the family court system and the domestic abuse she suffered at the hands of the father (using an alias), as well as permission to speak at events facilitated by organizations such as Cafcass, women's right groups and children's rights groups ⁴ but can the courts and the mainstream media do more to address the imbalance here?

There are also issues which need to be addressed from the alleged perpetrator's perspective. Clients may be misinformed about what constitutes alienating behaviors by a parent. This can lead to charged language (when temperatures need to be calmed) which may lead to parents being driven further apart and a child already upset at the breakdown of their parents' relationship suffering more as battle lines are drawn.

Trialing a new solution

Steps are needed early on to protect a party. A scheme has been trialed since late 2024 and early 2025. In certain regions in England and Wales (including Greater Manchester and three London boroughs) Domestic Abuse Protection Orders ('DAPO's) can be sought, which impose a range of measures tailored for specific circumstances⁵.

A DAPO can prohibit an alleged abuser from contacting a victim; require an abuser to leave a property; and necessitate attendance at behavior change courses. DAPOs can be applied for by victims or third parties (e.g. police, local authorities, specified organizations). It is a criminal offence to breach them, and they can be ordered by the court on an interim or longer-term basis.

Domestic Abuse Protection Notices ('DAPN's) can be issued by the police against an alleged perpetrator. An officer needs to have reasonable grounds to believe that a person has been abusive to another person who is 16 or older, and the two parties must be personally connected, e.g. married or in a relationship or be relatives. DAPNs can be issued by the police without court approval and so offer temporary relief. Failure to adhere to a DAPN may lead to arrest. Issuing a DAPN triggers a mandatory court hearing where a decision on a DAPO can be made.

DAPOs and DAPNs could therefore be swifter to secure than the more traditional non-molestation or occupation orders, (orders from the Family Court which may be longer lasting but for which the hearing date is less certain). Depriving a person from returning to their home under the terms of an occupation order is a draconian step and one which the court is often (justifiably) reluctant to order, but the new orders and notices provide a swifter option.

So, there is progress. But practitioners need to be alert to the complex and varied way in which abuse can be enacted and how and when it impacts clients financially. Solicitors, barristers, judges and procedural rule committees must respect the potentially devastating impact abuse can have, not just in cases involving children but in financial remedy proceedings too.

As in life, little in law is black and white, even less during emotional family court proceedings. No court system can suit everyone. But every victim survivor is entitled to a fair outcome, not just those whose domestic abuse fact pattern has the 'right' sort of financial consequence which fits neatly into the narrow set of circumstances currently prescribed. Judges need to reflect abusive behavior in their awards. Such sentiments are usually met with the 'floodgates' response, and some in the judiciary have moved fast to keep those gates firmly shut. But our publicly funded court system is there to serve the public and we need to check that the right 'public policy' is being applied here.

Footnotes

1. https://www.ons.gov.uk/peoplepopulationandcommunity/crimeandjustice/bulletins/domesticabuseinenglandandwalesoverview/november2024

2. NCPSS.org.uk https://learning.nspcc.org.uk/child-abuse-and-neglect/domestic-abuse

3. 'Conduct' in this context refers to the court's duty to consider whether a person's behaviour during a marriage is such that it would be inequitable to disregard it when deciding what a fair financial outcome should be. The threshold to be met for conduct to be specifically factored into the court's decision-making is high.

4. M and F [2025] EWHC 801 and see https://www.withersworldwide.com/en-gb/insight/read/transparency-and-the-uk-family-court-%E2%80%93-where-are-we-now-(again)

5. See our article published earlier in the year: Domestic abuse in private family law cases: understanding DAPOs and DAPNs

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.