Violent Conduct and Property Settlements
Sometimes relationships break down at least partially due to the violent conduct of one of the partners. Many practical matters need to be attended to after a relationship break down. One of these is determining how property is to be divided. So, is the violent conduct on the part of one partner relevant to determining how property is divided? The answer to this question is a little complicated. This article looks at how courts have dealt with violent conduct and property settlements.
Section 79 of The Family Law Act 1975 allows a court discretion to make any order it feels appropriate when deciding a property settlement after a relationship has broken down. This section does not specifically mention domestic violence or violent conduct as a factor to consider when a court is deciding on a property settlement. It is, therefore, necessary, to look at case law to see how violent conduct is treated in property settlements.
Violent conduct and property settlements in Kennon v Kennon
The 1997 Family Court decision of Kennon v Kennon is one of the leading cases on the impact of violent conduct on property settlements after a relationship breakdown. The length of the parties’ relationship was about five years. The couple began living together in April 1989 and were married in September 1991. They separated in March 1994. The couple had no children. There was a large discrepancy in the wealth that was brought to the relationship by each party. At the time the matter proceeded in court, the husband held $8.9 million worth of property. He also earned about $1 million per year in income. The wife at the commencement of the relationship had about $49,000 of assets in her name $45,000 of annual income. At the time of trial, she had about $94,500 in assets and $36,000 in annual income.
The wife allegedly had been subject to domestic violence, including physical violence, throughout the relationship. Her doctor provided evidence that she suffered from anxiety due to her husband’s abusive behaviour.
The Full Court of the Family Court found that the violent conduct of the husband was relevant in determining the property settlement. This was so in the context of assessing the contributions made to the relevant assets by the parties. The Family Court considered that where one party to a relationship had inflicted harm upon the other, and this has had an adverse impact on that party’s ability to contribute, making their contributions more arduous, then a court can take this into account when determining orders for distributing the property.
In this case, the court went on to state that there are only a small number of cases where this consideration would apply. It also stated that in order for the consideration to apply, it is necessary to provide evidence that the conduct occurred during the marriage and affected the contributions of the party who was the victim of the violent conduct.
Violent conduct and property settlements in Spagnardi v Spagnardi
The 2003 Family Court of Australia decision of Spagnardi v Spagnardi applied the test set out in the Kennon decision. It stated the rule in Kennon required that it was necessary to provide evidence of the following for an adjustment to be made to a property settlement due to domestic violence:
- incidence or incidences of violence;
- the effects of the violence; and
- evidence to allow the effect of the violence to be quantified in the context of the capacity of the victim to contribute.
Criticism of the Kennon case
It has now been more than 20 years since the Kennon case was decided. Domestic violence is increasingly being acknowledged as a major societal problem. The Kennon decision has been criticised for not recognising the realities of domestic violence such as, among other things, the fact that it is often difficult to prove that violence has occurred due to a lack of witnesses. Calls have been made for legislative reform in this area so that the reality and financial consequences of violence are more fully considered when considering property settlements.
Keating v Keating
A more recent Family Court decision has sparked the question as to whether Kennon v Kennon would be applied more broadly. This case was Keating v Keating and was decided on 21 March 2019. In that case, the majority confirmed that corroborative evidence was not required for domestic violence to be accepted and taken into account in the context of a property settlement. The majority was also of the view that evidence did not have to be provided so that the effect of the domestic violence could be quantified. Austin J dissented in this case and was of the view that the veracity of allegations of domestic violence must be tested and evaluated and the victim must do more than allege that they were a victim of their partner’s violence
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