Family Violence – Impact on the Division of Property

The jurisdiction of family law in Australia is generally a “non fault” based jurisdiction. There are, however, exceptions where “fault” or conduct of a party is relevant when dealing with particular provisions in respect of certain matters; a typical example being where children are concerned and determining what is in their best interests.

In property proceedings matters are not decided on the basis of fault in a marriage but on contributions.

However, we have also seen in property proceedings the existence of domestic violence being considered when determinations are made on the basis of what is “just and equitable” and “the justice of the case” pursuant to s79(2) and s75(2)(o) of the Family Law Act 1975.

Until the case of Kennon (1997), cases also simply conceded the relevance of conduct in the case of direct financial consequence.

In Kennon, the Full Court held “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 a party’s contributions to the marriage or…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 entitle to take into account in assessing the party’s respective contributions within section 79.”

However, the Court did not provide any assistance by specifying the adjustment the Court made for this component.

In Kennon’s case, although the discussion by the Court centred on domestic violence, the Court made the point that domestic violence is not an exclusive category of conduct to be considered and that “it is the most obvious example of a wider and more general category of conduct” which may be relevant when assessing contributions made by the parties.

The majority referred to the recognition of the “pervasiveness and destructiveness of domestic violence” and that “the law, and society more generally have begun to explore legal remedies which may be appropriate to prevent such behaviour or address its consequences”.

However, this is not an invitation to parties to provide detailed evidence about the other parties’ behaviour towards each other during the marriage.

In his observations, His Honour Chisolm J, in the unreported decision of In the Marriage of Rosati (1997), stated:

“There are three main reasons for this. First, in practice it will often be very difficult for the court to make an overall determination of whether overall one party is more wronged than the other. In many cases, a prolonged investigation of these matters would, in the end, prove fruitless, and would add immeasurably to the financial and emotional costs of the proceedings.

“Second, these matters may sometimes be of marginal relevance. For example, if one party has assaulted and injured the other party, the injury and its consequences will be relevant, quite apart from conduct, if as a result the injured party has medical or other costs, or is in need of assistance, or is unable to obtain employment. Again, if the victim of the assault has a right of action for damages under the general law, in financial proceedings a court may perhaps find that ‘the justice of the case’ does not require the matter to be dealt with in the family court proceedings, since the right of action will remain available after the completion of the family law proceedings…

“Third, and most obviously, this sort of material will normally lead to extended trials of a particularly bitter kind, and will take a heavy toll on the parties in both financial and emotional terms. In some cases, this may be disproportionate to its impact on the end result.”

For conduct to be a factor a party must show that the conduct occurred during the course of the marriage and had a discernible impact upon the contributions of the other party.

The above, brief analysis shows that domestic violence can be relevant in property and financial proceedings, however, not on the basis of proving “fault” of one party, but where it can be shown that it relevantly impacts on the contributions and/or the ability of a party to make contributions to the relationship/asset pool.

If you require assistance with a property settlement or in obtaining property orders, particularly where allegations of domestic violence have been made, our experts at Prime Lawyers – Family Law Division can help. Contact us to make an appointment with a family lawyer at your nearest Prime Lawyers office.

We have offices in Sydney, Parramatta, Chatswood, Sutherland and Wollongong.