Discussion Topic:

Carl and Gail have been married for eight (8) years. They jointly own a three-bedroomed house worth 450,000. They have one child, Julia aged seven (7).

Gail gave up her successful job as a successful accountant to look after Julia. Carl works as a successful lawyer and earns 250,000 a year. The couple also own a cottage that Gail inherited from her mother before she and Carl met but she rents this cottage out to pay for Julia's school fees.

In the last two (2) years Carl and Gail's relationship has changed in that Carl decides everything for Gail; from what sheis allowed towear to what she can do and to whom she can talk. Gail loves Carl and wants to please him. She tries very hard, but Carl always finds fault and punishes her. He is often violent to Gail, pushing her down the stairs, hitting her, and on one occasion he broke her arm: she never reported it to anyone, as she was very embarrassed.

In recent weeks Carl has become even angrier and has taken his frustration out on Julia ona number ofoccasions, shaking her violently. Gail cannot afford to move out as Carl controls the spending of the household income and she wants to stay with Julia in the house. Gail has had enough and wants to divorce Carl in the long term and wants him out of the house, so that she and Julia can live in peace.

To taunt her one night, Carl comes home drunk and starts banging on the bedroom door. When Gail threatens him with the police, he shouts that he will come back later and 'finish them all off.' Gail is now extremely frightened. She wants the violence to stop immediately and then to divorce Carl, but she is worried that the court will award himall ofthe marital property and as she has no job,she is worried that her and Julia will be left destitute.

In the light of the above consider the following for discussion:

1. Advise Gail on how family law can assist her in the short term with regards to Carl's violence and threats against her and their daughter, Julia.

2. If Gail chooses to divorce Carlon the basis oftheir marriage having irretrievably broken down due to his unreasonable behaviour, how might the court redistribute the marital property?

Response Post:

Domestic Abuse Protection Orders:

One of the issues raised for determination was whether there are short term redress under family law for Carl's violence and threats against her and their daughter. Indeed as mentioned, they could obtain domestic abuse protection orders under the Domestic Abuse Act 2021. Section 27 of the Act provides that a domestic abuse protection order will be issued where a party is abusive towards another person who is sixteen years and above and whom he is connected to.[1] However before such orders are granted by the court, it needs to be satisfied of some conditions as enshrined under section 32 of the Act that on a balance of probabilities, Carl has been abusive towards Gail and that they are personally connected.[2] The other condition is that the orders sought must be necessary and proportionate to protect Gail from domestic abuse.[3]

Therefore before the orders are granted, the court must be satisfied of these conditions and as was held in A Child (Application of PD12J) [2021], that before the court can consider issuing any orders relating to allegations of domestic abuse, it must take into consideration all the relevant factors.[4] Thus if Gail is able to obtain such protection orders from domestic abuse, then Carl will be restrained from proceeding with his abusive acts towards Gail and Julia.[5] If Carl breaches this, then by virtue of section 39 provides that he shall be arrested and convicted.[6]

Consequently, indeed Gail may seek such orders in the meantime as the divorce proceedings are ongoing. However are such orders appropriate in the circumstances and will they ensure adequate protection to both Gail and Julia and how will the court be satisfied that the orders are necessary for protection?

[1] Domestic Abuse Act 2021, s. 27.

[2] Ibid s. 32

[3] Ibid

[4] A Child (Application of PD12J) [2021] EWFC B59

[5] O'Neill, Martin, 'Domestic Abuse Protection Notices and Orders, Definitions, Breaches, and the Police Role (Sections 22-27)', in Susan Edwards, David Malone, and Gillian Jones QC (eds), Blackstone's Guide to the Domestic Abuse Act 2021 (Oxford, 2023; online edn, Oxford Academic, 18 May 2023), https://doi.org/10.1093/oso/9780192870513.003.0005, accessed 19 April 2024.

[6] Ibid note 1 s. 39

Respond to the above response post using OSCOLA referencing for the primary and secondary sources.