Property settlements can be stressful at the best of times however, where family violence has occurred during the relationship, dividing property can be exceptionally distressing. In Australia, domestic violence does affect property settlement in certain circumstances, often favouring the victim.
Family violence can be taken into consideration if the violence impacted the victim’s ability to make financial and non-financial contributions, or if the victim has higher future need due to the violence.
The most notable family violence property settlement case, Kennon & Kennon [1997], set the precedent for “Kennon arguments” or “Kennon claims” which involve the victim party arguing that their ability to make contributions in the relationship were impacted due to the violent conduct of the other party.
Understanding Family Violence
Family violence is defined in section 4AB of the Family Law Act (1975) (“the Act”) as “violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family, or causes the family member to be fearful.”
Examples of family violence are noted in section 4AB(2) of the Act and include any of the following:
- Assault;
- Sexual assault or sexually abusive behaviour;
- Stalking;
- Repeated derogatory taunts;
- Intentionally damaging or destroying property;
- Intentionally causing death or injury to an animal;
- Unreasonably denying the family member financial autonomy that they would’ve otherwise had;
- Unreasonably withholding financial support needed to meet living expenses at a time when the person is entirely or predominantly dependant on the person for financial support;
- Preventing the family member from making or keeping connections with their family, friends or culture; or
- Unlawfully depriving the family member of their liberty.
This list is not exhaustive but provides an extensive list of acts of family violence in the forms of physical, sexual, psychological and financial abuse.
The Legal Framework
A party seeking to rely on Kennon argument at court must use evidence to prove the following factors:
- There were incidences of violence;
- There was a significant reduction in the victim party’s contributions due to the violence; and
- The violent conduct made the victim’s contributions more difficult.
The Act does not currently acknowledge family violence explicitly, however family violence can be considered in accordance with section 75 which includes matters to be taken into consideration in relation to spousal maintenance, and section 79 which allows the court to make orders in property settlement proceedings altering the interests of the parties.
Under section 79(4), the Court may take into consideration the following factors, all of which have the capacity to potentially be impacted by family violence:
- The financial contributions made by a party directly or indirectly to the marriage;
- The non-financial contributions made by a party directly or indirectly to the marriage; and
- The contribution made by a party to the marriage as a homemaker or parent.
There are proposed amendments to the Act as outlined in the Family Law Amendment Bill 2024 which seek to address recommendations surrounding property settlements and family violence.
The amendments would impact the way the court recognises the economic impact of family violence on the wealth and welfare of families. The legal framework underpinning family violence and property settlements may shift significantly once these amendments are introduced.
Impact on Property Settlements
In cases where there has been significant family violence, a party will need to successfully make a Kennon claim in order for the Court to make property orders with an adjustment for the family violence. The cases below indicate how family violence can impact property orders in some instances.
Case Studies
Kennon & Kennon [1997]
Kennon & Kennon [1997] is currently the most notable family law case relating to family violence and property settlements. In this case parties were in a relationship for two years and married for an additional three years. There were no children of the marriage and the total asset pool was upwards of $8 million dollars, most of which was held in the husband’s name. The husband also had a high income of $1 million per annum, while the wife had an annual income of $36,000.
The wife alleged that she had been the victim of family violence during the relationship. The wife claimed the husband had made her fear for her safety on numerous occasions, especially while he was under the influence of alcohol. The wife was diagnosed with numerous mental illnesses which she claimed was as a result of the family violence.
The Full Court found that the violent conduct was relevant when making orders for the division of the matrimonial asset pool. Originally, the wife’s entitlements totalled $400,000 however the Full Court increased the wife’s entitlements to $700,000 after factoring in the family violence.
This test in this case is now regularly used in family violence property settlements. As discussed above, for a Kennon claim to be successful, the following three elements must be satisfied:
- There were incidences of violence;
- There was a significant reduction in the victim party’s contributions due to the violence; and
- The violent conduct made the victim’s contributions more difficult.
It is important to note that the existence of family violence in the relationship does not mean the Court will necessarily make a Kennon adjustment in favour of the victim party.
In the case of Gadhavi & Gadhavi [2022] the parties had been married for 20 years and had two adult children. The marital asset pool at separation totalled upwards of $15 million, and by the time the matter was heard at Court, the parties had upwards of $25 million.
The husband made greater contributions financially and had entered the relationship with over $2 million. The wife relied on a Kennon claim and claimed her contributions were made significantly more arduous due to the husband’s violent conduct and requested a 60/40 split in her favour. The husband sought a 65/35 split in his favour.
Family Violence
The wife claimed that throughout the marriage, the wife made a number of diary entries about the husband’s abuse which started after their honeymoon in 1998. She also had recordings of the husband’s verbal abuse. The wife alleged numerous incidents of domestic violence including being locked in a room by the husband, being pushed down stairs by the husband, having her property destroyed by the husband, being assaulted by the husband and threatening her with knives.
- During the marriage in 2006, an Apprehended Violence Order was made against the husband for the wife’s protection on application by local Police.
- In May of 2007 the wife reported an incident of family violence by the husband against her to her general practitioner.
- In August of 2007 the wife attended a medical centre with head injuries which she alleged were sustained at the hands of the husband.
- In 2008, an Apprehended Domestic Violence Order (ADVO) was made against the husband for the wife’s protection on application made by the Police.
- Between 2011 and 2018, conflict in the home increased and the two children, who were teenagers at this point were involved in the conflict.
- The husband sent the wife numerous threatening emails and text messages towards the end of the marriage.
- In July of 2018, another ADVO was taken out against the husband upon application by the Police.
- After separation the husband sent many malicious and unhelpful emails to the wife’s solicitors despite having his own representation, made public posts about her on her social media pages, tagged her and her employer in harassing and humiliating Facebook posts and sent nasty text messages to the couple’s children.
- In 2022 an order varying the ADVO was made for the protection of the wife and one of the children, which is in place until 2025.
- The judge also noted that the husband appeared “defiant, narcissistic, entitled and wanting to control the narrative in the courtroom” when giving evidence.
The Court made an adjustment in relation to the conduct of the husband towards the wife, which was found to have impacted her contributions, and so the Court made orders for a 60/40 division in the wife’s favour.
After making a 5% adjustment as the wife was still earning an income while the husband wasn’t, the Court made orders for a 55/45 division in the wife’s favour.
Legal Guidance
It is imperative to seek legal advice early, especially if there has been any family violence. Contact our office for further advice about property settlements and Kennon claims.
Resources
If you are in immediate danger, call 000 for emergency services.
1800Respect: Call 1800Respect for information, counselling and support services
Safe Steps: Call 1800 015 188 or live chat on their website
At Matthies Lawyers, we are here to cater to your family law needs. Our team of family lawyers proudly serves clients in South Yarra, Toorak, Windsor, Prahran, Armadale, and Richmond.
Contact us today for expert legal advice and support or call +61 3 8692 2517.
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Kate Scolyer – Solicitor– Matthies Lawyers
Disclaimer: This article contains general information only and is not intended to be a substitute for obtaining legal advice.