Family Law Blog

The impact of family violence on property matters

Posted by Karina Ralston on 27 Nov 2015

The conduct of the parties isn’t usually considered relevant to family law property settlement, however the Court may make an exception when violence is a contributing factor to the relationship breakdown.

When determining property settlement matters the Court is required to take into account the contributions made by each person to the acquisition, improvement, and maintenance of their assets, the contributions made to each other and the contributions made to the welfare of the family.

In exceptional circumstance, it has been successfully argued that domestic violence victims make greater contributions as their ability to contribute is significantly more difficult. This may alter the overall property settlement, as in the case of Kennon and Kennon [1997].

The case involved a four year marriage with no children. The wife claimed that she should receive an additional percentage of the asset pool due to the assault and battery inflicted on her throughout the relationship. The Court made an adjustment in her favour based on the family violence she had experienced.

It was established during the case that the following elements must be present in order for a party to receive an adjustment in his or her favour in the determination of property interests on the basis of violence:

  • A violent course of conduct
  • During the marriage
  • Proof of a significant adverse/discernible impact on the party’s contributions to the marriage or having made those contributions significantly more arduous.

Subsequent cases suggest that:

  • There must be evidence of the relevant course of conduct and its impact upon the other party’s contributions
  • It’s necessary to prove a connection between the violence and contribution 
  • The claim can only be established by probative evidence that satisfies the Court on the balance of probabilities.

In Kennon and subsequent cases the Courts have indicated that an adjustment on the basis of domestic violence will only be made in exceptional circumstances and in a “narrow band of cases.”

If you have been a victim of domestic violence, or are concerned that you may be at risk of family violence, it is important that you seek assistance. You can contact our office for further information, call the Domestic Violence Hotline 24 hours a day on 1800 656 463 or contact your local police.