How Can Family Violence Affect Property Orders?

How Can Family Violence Affect Property Orders?

In Australia, and internationally, domestic abuse is sadly an ever-growing concern. As well as the criminal consequences which follow, family lawyers will tell you that family violence can also have implications for property settlements following a divorce.

Property settlements are determined under the Family Law Act depending on how much each side, in both financial and non-financial respects, has participated in the partnership. Previously, the actions of partners throughout a marriage were not a significant consideration, however that has changed, and one case in particular has influenced that.

The Kennon Marriage Case is one of the pioneering judgments where domestic abuse was a central factor in deciding the right of a claimant to the marital property. Kennon’s 1997 Family Court of Australia decision examined whether domestic abuse could change the result of a settlement of the property.

The husband had a considerably higher salary than his wife and had added far more money and assets to the marriage by the time they came to divorce. The wife claimed a number of abusive actions against her had occurred, comprised of seven separate charges of physical abuse, and believed that a property change in her interest should result from these actions.

The Court ruled that Sections 75 and 79 of the Family Law Act should be used to determine the economic effects of domestic abuse provided the following elements are fulfilled

  • there was a course of violent conduct by one party towards the other which occurred during the marriage or relationship; and
  • this conduct had a significantly adverse or negative impact on the party’s contributions to the marriage; or
  • the conduct had made the party’s contribution significantly more difficulty than they ought to have been.

In making a claim, first, the victim needs to provide separate information for each case of the suspected abuse. If an abusive behaviour can be established, and a direct relationship can be identified between the abuse suffered and the victim’s difficulties in contributing to the marriage, a change can be made to the settlement.

The economic effects of domestic abuse also need to be measured on the grounds of the physical and emotional well-being of the victim, the financial conditions of the victim and their desire to find a meaningful job. An amendment can only be implemented if the Court finds that there will be substantial financial implications for not making an amendment and that there is strong evidence of domestic abuse.

A claimant of property settlement can demand an amendment depending on the claim that his or her commitment to the relationship has been made ‘more complicated’ by the aggressive actions of the other party. As harsh as it may seem, the abuse itself is not enough.

This means that no adjustment is going to be made merely because they have been the victim of significant domestic abuse. Proof must be given that abuse has had a substantial effect on their desire to contribute to the relationship, making their participation more difficult or impossible.

Every family’s situation can be unique, which is why courts are eager to take note of family-specific problems in determining what type of property settlement would be reasonable and equal. However, the Family Law Act lays out the obligations that the Court should weigh up in deciding the allocation of properties, including economic, property and family contributions.

The Court can also take into account other considerations when agreeing on the allocation of properties, commonly known to as ‘future needs factors’, such as the age and health of the parties, their salaries, their assets, and whether they are caring for children  under 18 or not.

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