David Hodson on International Family Law: Let the vuvuzelas sound: domestic abuse must be condemned

21 June 2010

As the eyes of the world focus on South Africa this month, attention rightly comes to its distinctive problems such as poverty in its townships and appalling rates of HIV. But its problems of domestic abuse are shared across the world. However unlike England, South Africa is one of a number of discretionary based family law jurisdictions which in appropriate cases condemns domestic abuse in the actual outcomes on divorce finance. Their leading case is Beaumont [1987]. 

A couple of years ago for a paper for the World Congress on Family Law, I conducted an informal worldwide survey of the approach to domestic abuse in finance cases. I was surprised to learn several countries now have similar caselaw such as Australia, New Zealand and parts of the US following their introduction of the Violence Against Women Act 1994. Other countries are actively exploring it including non-discretion based jurisdictions where it is harder to incorporate in outcomes. 

The position was well set out by a New Zealand judge who said: "the disapproval of the legal system of domestic violence will only reach the community at large when such conduct of whatever degree hits the hip pocket of the violent spouse".

England has extensive and increasing awareness of domestic abuse, with appropriate remedies, in the context of protection from violence, impact on children and acknowledging the imbalance to negotiating eg in mediation. But it only features in finance cases if inequitable to disregard (s25 (2)(g)), when truly exceptional FS v JS [2007] and when not tokenistic McCartney [2008]. Of course we reject the attempts during the 1996 Family Law Bill to introduce conduct at every stage in the process.  Nevertheless as many countries around the world have already done so and others are actively introducing, should we be re-examining the effect of one chief part of our family justice system, finance resolution, being deaf to the impact of domestic abuse? 

Let the vuvuzelas sound out loud and clear from South Africa: domestic abuse must be condemned across the family justice systems worldwide.

David Hodson is a Consultant at The International Family Law Group. He acts in complex family law cases, often with an international element. 

He is an English specialist accredited solicitor, mediator, family arbitrator, Deputy District Judge at the Principal Registry of the Family Division, High Court, London and also an Australian qualified solicitor, barrister and mediator. He is a Fellow of the International Academy of Matrimonial Lawyers and author of A Practical Guide to International Family Law (Jordan Publishing, 2008). He is chair of the Family Law Review Group of the Centre for Social Justice. He can be contacted on dh@davidhodson.com.

The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.

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