The Relevance of Family Violence on Family Law Property Settlement

In Australia, we have a “no fault” jurisdiction for Family Law. Therefore is family violence relevant to determining how the property pool should be divided? This is a complicated question. This article examines a number of cases to assess how the courts have treated violent conduct in the context of property settlements.

In 1997, the Family Court of Australia considered whether family violence could change the outcome of a property settlement.

In this case, it was a short relationship where the Husband had brought in significantly more assets into the relationship and had a significantly higher income. There were no children of the relationship. The Wife alleged that she was the victim of family violence. The Husband was prone to excessive alcohol consumption leading to fits of rage and physical violence, where the Wife alleged that she feared for her safety. She developed a psychological injury described by her doctor as suffering from “an anxiety state”.

The court determined that in the context of assessing contributions, an adjustment could be made if it could be satisfied that a course of violent conduct could be established, the violent conduct had a discernible impact on the victim and the victim’s contributions to the relationship had been significantly more arduous because of the violence.

The court noted that there are only a narrow band of cases where this consideration would apply.

Kennon v Kennon is the leading case in Australia on the impact of violent conduct on property settlements following a breakdown of relationship. However, it has had little impact on the post-separation divisions ordered by the Family Court of Australia. Kennon has been widely criticised for not recognising the complexities of family violence. For instance, it is often hard for victims to prove that family violence has in fact occurred when violent conducts usually happen behind closed doors, in the absence of witnesses.

In 2011, the Family Court of Australia considered the matter of Coad v Coad. The Husband attempted to murder his Wife. The Wife sustained residual and lifelong disabilities, impacting on her capacity to work and earn an income. The injuries inflicted made it more onerous than it otherwise would have been for her to care for her child. The wife was awarded 90% of the property pool.

In 2019, the Family Court of Australia determined that the Kennon ruling could be applied more broadly. The court held that corroborative evidence was not a requirement for family violence to be accepted and to be accounted for in the context of determining property settlement.