In What Ways Does Family Violence Impact Property Settlement?

In What Ways Does Family Violence Impact Property Settlement?

Section 4AB of the Family Law  Act 1975 (Cth) defines family violence as violent, threatening, or other behaviour by a person that coerces or controls a member of the person’s family and is not limited to physical violence.

In 1997, the Family Law Courts heard and determined that the Wife who was the victim of sustained family violence through the marriage was entitled to an adjustment of property in the amount of 5%.  This is the case of Kennon v Kennon (1997).  It was held that sections 75 and 79 of the Family Law Act 1975 (Cth) allowed the Court to assess the financial consequences of family violence if the following three elements were satisfied:

1. A course of violent conduct must be established;
2. The violent conduct must have an impact on the victim; and
3. The victim’s contributions to the relationship must be made significantly more arduous as a result of the violent conduct.

This principle is referred to as a Kennon adjustment.

Given the nature of the evidence produced with respect to family violence where one party seeks a Kennon adjustment in family law, the matter often results in litigation. This is a complex area of law and is heavily dependent upon the evidence available before the Court.

Below are some case examples of how the court has dealt with Kennon adjustments:

Benson and Drury (2020)

The parties were in an 11-year de facto relationship with two teenage children and a net asset pool of over $2 million. The parties’ contributions were equal save for the husband’s initial contribution of a property with approximately $387,000 in equity compared to the wife who owned a property with equity of $108,000. The trial judge found that the de facto husband had perpetrated physical violence against the de facto wife “in all its forms” which had a “debilitating effect” on her. The trial judge concluded that the impact of family violence made the de facto wife’s contributions during the relationship and in the lengthy post-separation period all the more arduous. The trial judge assessed the adjustment at 5% such that the overall property settlement division was 55/45 in the de facto wife’s favour.

On appeal the Full Court determined that the trial judge should have taken a wholistic approach with respect to the parties’ contributions such that the trial judge was in error by assessing the de facto wife’s Kennon adjustment separately. The Full Court concluded that all contributions must be weighed collectively and that it is an error to segment or compartmentalise the various contributions. Whilst the Full Court found that the trial judge was in error in her approach to assessing the parties’ contributions by separating the Kennon adjustment to the wife, the overall property division of 55/45 in favour of the wife was said to be a just and equitable outcome and accordingly the appeal was dismissed.

S & S (2003)

In this case the Full Court found that the insufficiencies of the wife’s evidence leaves the Court with a limited ability to deal with the family violence allegations in the context of the parties’ property settlement proceedings. The Court confirmed however the three main principles of Kennon and that it is necessary to provide evidence to establish:

1. The incidents of domestic violence;
2. The effect of domestic violence; and
3. Evidence to enable the court to quantify the effect of that violence upon the parties’ capacity to contribute as defined by Section 79(4) of the Act.

Maddox & Merz (2014)

This case confirmed the principles established in Kennon and S & S. This case was in relation to a marriage late in the lives of each party and where both parties were reliant on Centrelink benefits. The property pool available for division was relatively small being only $332,222. The Court confirmed that the wife’s contributions were “rendered more arduous by the husband’s abusive behaviour, including verbal abuse, denigration and his use of prostitutes when the wife was present in the home”. Having regard to the size of the pool of assets available for division and the length of the relationship, the Court confirmed that the wife’s claim of a 10% adjustment was just and equitable in the circumstances.

Fairchild (2010)

The parties’ nine-year relationship was interrupted by a total of about four and a half years imprisonment served by the husband for subjecting the wife to “horrendous ongoing violence”. In respect of an asset pool of $309,000 the husband was found to have had initial equity of approximately $40,000 – $50,000 in the parties’ home at the commencement of the relationship. The Court found that the husband’s initial greater contributions were outweighed by the wife’s subsequent contributions which were made more arduous because of the husband’s ongoing violence. Contributions were assessed at 57.5% in favour of the wife.

The Court’s application of the Kennon principle is very different depends on the facts and circumstances of each case.  If you are unsure of whether family violence will impact your property division, contact Lewis Family Lawyers today to discuss this sensitive issue.