Relevance of Family Violence to Property Settlements

Domestic violence is not typically a relevant matter in respect to property settlement proceedings. However, in some cases, it may be appropriate and indeed necessary for the court to take this matter into account in determining the assessment of contributions of each party.

The leading case authority in respect to the relevance of domestic violence in property settlement matters is the Full Court case of Kennon and Kennon [1997] FamCA 27. In that case, the wife raised the argument that the assault and battery she suffered from the husband’s conduct needs to be taken into account with respect to her contributions to the relationship.

The court found that domestic violence may be relevant if there was a “violent course of conduct” by one party during the marriage on the other party, resulting in a “significant adverse impact” upon that party’s contributions. Alternatively, the violent course of conduct would also be relevant if it made the other party’s contributions “significantly more arduous than they ought to have been”.

An example of how this may apply is where one party has assaulted the other party regularly during the relationship, resulting in that party suffering a physical defect, making it difficult for them to conduct homemaker duties such as expending labour to clean the property. Another example is if such conduct resulted in the affected party taking significantly longer time to carry out certain homemaker duties that they previously could have completed in a short amount of time. The assessment of the contributions and the relevance of the conduct would be highly dependent on the evidence presented by each of the parties to the court.

It is important to note however that the court in Kennon has made it clear that this principle would only apply to “exceptional cases” and accordingly it is apparent that there is a high threshold to meet.

Domestic violence is also relevant in cases where the violent conduct of one party “has produced consequences which have diminished or destroyed the property of the parties”. It is also relevant in cases where the conduct has resulted in the diminution of the value of the property. This was discussed in the Kennon case, but was established previously in the case of Ferguson (1978) FLC 90-500 and is discussed further in a later case of Kowaliw (1981) FLC 91-092. This is a more distinct position in respect to why domestic violence should be relevant, as it results in a direct financial consequence as a result of the violent conduct of a party. An example of this is where in the midst of an argument with their former spouse, one party uses a hammer to destroy a wall at the parties’ matrimonial home, thus resulting in the destruction of property and arguably diminution of the value of the property.

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