Domestic abuse and financial proceedings: a focus on Australia’s family law reforms

As we come to terms with the lasting and significant impact that domestic abuse can have on those who experience it, family practitioners must grapple with how, if at all, abuse should be reflected in financial outcomes for separating couples.  

Australia has answered this question emphatically: by amending its Family Law Act 1975 to require judges to consider the impact of domestic abuse when making orders for maintenance or adjusting property. 

This change sits within a wider package that clarifies the structure of financial determinations and reinforces the court’s duty to manage proceedings in a manner that aims to safeguard parties against family violence. 

The approach in England and Wales

Last summer we reflected on domestic abuse in the context of England & Wales financial remedy proceedings.

Broadly, the court’s ability to consider domestic abuse remains tightly contained within the ‘conduct’ ground of section 25(2)(g) of the Matrimonial Causes Act 1973. Most recently, in N v J [2025] 1 FLR 571, Peel J reaffirmed that personal misconduct, including domestic abuse, must be ‘obvious and gross’ if it is to be considered. Even then, it requires a demonstrable financial consequence. 

Without substantive reform, the message for practitioners is clear. In England and Wales, only vanishingly rare cases will meet the threshold for a conduct‑based adjustment.

The Australian approach: what has changed?

Expanding the definition of ‘family violence’

Family violence is defined in section 4AB of the Family Law Act, and now expressly includes economic or financial abuse. A non-exhaustive list of examples provided in the section include controlling a person’s access to money, incurring debts in their name without consent and unreasonably withholding financial support. 

Financial remedies

With a similar effect to section 25 of the Matrimonial Causes Act, section 79 of the Family Law Act sets out the factors to be considered by a court when dividing property between married couples. There is mirror legislation for de-facto (cohabitating) couples. These factors are now grouped into considerations relating to the contributions made by each party to the relationship and those relating to their current and future circumstances. 

As of June 2025, domestic abuse is expressly identified as being relevant to both aspects of the calculus. The court may account for domestic abuse inflicted by one party on the other, if it impacted their ability to make contributions (be that financial, non-financial, parenting or homemaking). It may also take it into account where the abuse has impacted their current and future circumstances, for example, the party’s health, capacity for employment, or role as a parent. 

The effect of abuse will also be relevant to applications for spousal maintenance. 

What will the amendments mean in practice?

Although family practitioners may feel the changes are not drastic (over the last few years, Australian courts had demonstrated an increased willingness to account for domestic abuse in financial proceedings), there are some important practical points that should be considered:

• Evidence: careful consideration should be given to what evidence is required to establish the effect and not merely the occurrence of domestic abuse. This may include expert evidence, together with employment records showing earning history, medical and psychological material, and documentation of coerced borrowing or depleted savings. 
• Proportionality: to address inevitable concerns about delay and cost, the court is likely to engage in robust case management, triaging matters early, making proportional directions, and requiring compliance with timetables. 
• Negotiating in the shadow of the law: the statutory framework makes clear the relevance of domestic abuse and gives survivors firmer ground for settlement discussions with any NCDR process. 
• For international clients with strong ties to both Australia and England, the treatment of domestic abuse may lead to measurably different outcomes. This may be an important factor for clients considering where to effect their divorce or separation. 

Finally, there will be clients who don't wish to raise the issue as part of their financial separation, notwithstanding they have suffered abuse. It's important that their desire to move on with their lives is respected. 

Final thoughts

It will be interesting to see how the Australian amendments play out in practice. What is clear is that Australian courts now have a mandate to construct financial outcomes that give real consequence to domestic abuse. 

If they can successfully balance this mandate with the need to resolve disputes quickly, efficiently and without significant cost, it may serve as an important case study for substantive reform in England and Wales.