Domestic Violence and Property Settlements
By Peter Logan
If my relationship involved serious domestic violence, would this affect the outcome of a property settlement?
Domestic violence in a relationship might affect the outcome of a property settlement if there is evidence of serious violent conduct, which has made it significantly more difficult for the victim party to contribute properly to the relationship.
A property division is based largely on the contributions. This includes those made by the parties initially, during the relationship, and sometimes even post-separation, as well as the factors that affect each party’s future.
The case of Kennon v Kennon established the principle which has to be met in order to vary a property settlement on the basis of serious domestic violence.
This case involved a property settlement whereby domestic violence was present in the relationship. The court considered in this case whether the domestic violence had an impact on the victim’s ability to make contributions during the relationship and whether this could influence the outcome of the property settlement.
The case predominantly focused on the contributions set out in section 79 of the Family Law Act 1975, specifically 79(4)(c) – (the welfare of the family and homemaker contributions) and also considered section 75 – (the future factors).
Three elements were established to satisfy whether the presence of domestic violence could change the outcome of a property settlement:
Violent conduct must be established;
The violence must have a discernible impact on the victim; and
The victim’s contributions to the relationship must be made significantly more ‘arduous’ as a result of the violent conduct
This is reflected in the case when the court said:
“Our view is that where there is a course of violent conduct by one party towards the other during the marriage which is demonstrated to have had a significant adverse impact upon that party's contributions to the marriage, or, put the other way, to have made his or her contributions significantly more arduous than they ought to have been, that is a fact which a trial judge is entitled to take into account in assessing the parties' respective contributions within s 79.”
Their honours also commented that these principles should only encompass “exceptional cases.”
What you need to remember:
The outcome in Kennon isn’t always going to be reflected in every property case involving domestic violence. It is a high threshold to prove and there have been multiple cases in which the court was not satisfied that the domestic violence actually affected the victim party’s ability to contribute to the relationship or family.
If you wish to obtain legal advice about your property matter, please do not hesitate to contact the Family Law team at Connolly Suthers Lawyers by phoning (07) 4771 5664 or submitting an online enquiry on the Family Law page.