How Domestic Violence is Considered During Family Law Property Settlements?

Unfortunately, domestic violence is prevalent in Australian families and often leads to family breakdowns. Domestic violence issues are dealt with seriously during a family breakdown, especially in a family law proceeding. In the realm of property settlements, In the Marriage of C K and I W KENNON (1997) 22 Fam LR 1 (“Kennon”) provides guidance on how the Court should consider the impact of domestic violence on a spouse’s contribution to the marriage.

Two Approaches Outlined in Kennon (1997)

Under Kennon, there are two different ways a party can argue that their contributions have been impacted by domestic violence, namely by claiming:

1. that the victim’s contribution should be increased because it was significantly more arduous or difficult to make their contribution in light of domestic violence; or
2. that the victim’s contribution should be increased because the victim made a lesser contribution than would otherwise be expected.

Holistically, it is more common for people to adopt the first approach than the second in property proceedings. Such a choice is because the latter approach presumes that the victim had contributed less to the marriage than the perpetrator.

When is Domestic Violence Relevant in Property Proceedings?

For domestic violence to be considered relevant in a property proceeding, the abusive conduct must have happened during the marriage and had a discernible impact upon the victim’s contributions. To successfully demonstrate this, the victim must link the violence with the parties’ contributions.

Often, broad allegations of violence are not acceptable to show that domestic violence had a discernible impact on the victim’s ability to contribute financially or to the family’s welfare. Instead, evidence of longstanding and significant physical violence and non-physical abuse can often help the victim establish that the violence they experienced placed a more onerous burden for them to carry during the marriage, hence making it more difficult for them to contribute.

It is noteworthy that in the Family Law Act 1975 (Cth), the term “domestic violence” covers an extensive range of abusive or controlling behaviours. However, in addition to the behaviours defined in the Family Law Act 1975 (Cth), the Court has also adopted the increased contribution approach when dealing with the impacts of a spouse’s excessive drinking habits and physical abuse of the children.

Conclusion

As discussed above, dealing with family violence during the family law property settlement process can be stressful and unnerving. However, at HandO Lawyers, we are here to provide you with expert legal advice and help you go through this process as smoothly as possible. If you are going through a separation and require assistance with property settlements or parenting arrangements, Straits Lawyers offers online services in English and Chinese.



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Please note that this article does not constitute legal advice, and HandO Lawyers will not be legally responsible for any actions you take based on this article.