Domestic violence in some circumstances is relevant in determining how a former couple’s asset pool is divided.
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Domestic violence affects all spectrums of society – young, old, pregnant, male, female, short term relationships, long term relationships. There is no exception. However, in recent years, society has become more aware of domestic violence and the importance of changing the mentality surrounding domestic violence with campaigns like “Not Now, Not Ever” in Queensland and “It stops here” in New South Wales.
In 1997, In the Marriage of Kennon (1997) 22 FamLR1; (1997) FLC 92 -757, the Court recognised the serious impact of domestic violence on the victim. There is now authority that domestic violence may be relevant in restricted cases when determining the respective entitlements of parties for the division of their matrimonial property pool. However, it is necessary that more than the existence of domestic violence in a relationship must be shown before a Court will make any adjustment in favour of a party who has suffered domestic violence.
In the Marriage of Kennon (1997) 22 FamLR1; (1997) FLC 92 -757, the Full Court considered the impact of family violence in a claim for property settlement. However, the pronouncements it made were not necessary for its decision so that its comments in this area are not binding on lower courts. The court said that:
“Put shortly, our view is that 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 that party’s contributions to the marriage, or, put the other way, to have made his or her contributions significantly more arduous than they ought have been, that is a fact to which a trial judge is entitled to take into account in assessing the parties’ respective contributions within s79. We prefer this approach to the concept of “negative contributions” which is sometimes referred to in this discussion.”
The court said that this would be a consideration in only exceptional cases and would apply to only a narrow band of cases.
The Court said that to be relevant, it would be necessary to show that the violent conduct occurred during the course of the marriage and had a discernible impact upon the contributions of the other party. It is not directed to conduct which does not have that effect and of necessity it does not encompass conduct related to the breakdown of the marriage.
In a subsequent decision in the Full Court in Spagnardi [2003] FamCA905, the Court said that what must be established is:
- the incidence of domestic violence
- the effect of the domestic violence
- evidence to enable a court to quantify the effect of that violence upon the parties capacity to “contribute” (as defined by s79(4) of the Family Law Act 1975).
In Williams & Williams [2009] FMCAfam93, FM Wilson (as he then was) said that:
- quantification of how contributions were more arduous need not involve mathematical calculation
- specific evidence must be established showing that the alleged behaviour is causally linked to the making of the contributions
- contributions made more arduous must be identified and an explanation provided as to why they were more arduous.
A different view was taken by Judge Brewster in Palmer v Palmer [2010] FMCAfam999. That was a case where the court found that there had been violence perpetrated by the Husband toward the wife and that it had a significant impact on the wife. However, the Court doubted that the remarks in Kennon were good law.
Judge Brewster took the view that as previous decisions had concluded that special financial contributions do not lead to an adjustment in favour of a husband, then special non-financial contributions resulting from a husband’s violent behaviour making a wife’s non financial contributions more onerous should not lead to a contribution based adjustment in favour of the wife.
Even where the Kennon principle may be adopted, proving this argument is not simple. You must provide evidence to the court, and not in a generalised nature, of specific incidents when you suffered from domestic violence.
Before a court may make an adjustment in favour of a party who has suffered domestic violence from the former partner, the court must be satisfied that:-
- There was domestic violence perpetrated by one party towards the other;
- That conduct occurred during the relationship;
- That that conduct is demonstrated to have had a significant adverse impact upon that party’s contribution to the relationship or to have made those contributions significantly more arduous;
- There is a connection between the domestic violence and the contribution.
There must be sufficient evidence to enable a court to quantify the effect of the domestic violence upon the party’s capacity to make contributions in the relationship.
If you would like advice in this area, contact our Brisbane Family Lawyers will be happy to assist you.
