What is family violence and how could this affect our property settlement?

Following separation,  a property settlement occurs between parties to divide financial assets and liabilities. In most cases, marital conduct of either party is not considered to be relevant to the division of property as Family Law in Australia is generally a no-fault jurisdiction except when there is:

1. destruction or wasteful dissipation of assets by one party, or
2. violent conduct, as below. 

If it can be established that family violence perpetrated by one party had a significant adverse impact on the ability for the other party to financially contribute, then the victim of family violence could be entitled to an uplift of their property settlement entitlements.

How does the law define family violence?

According to s 4AB of the Family Law Act 1975 (Cth), family violence is defined as

‘violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful. Examples of behaviour that may constitute family violence include:-

(a) an assault; or

(b) a sexual assault or other sexually abusive behaviour; or

(c) stalking; or

(d) repeated derogatory taunts; or

(e) intentionally damaging or destroying property; or

(f) intentionally causing death or injury to an animal; or

(g) unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or

(h) unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or

(i) preventing the family member from making or keeping connections with his or her family, friends or culture; or

(j) unlawfully depriving the family member, or any member of the family member’s family, of his or her liberty.’

The facts of Kennon v Kennon

Kennon v Kennon [1997] FamCA 27 was a landmark case in Australia. It was the first time the Court acknowledged that victims of family violence can have an impacted ability to financially contribute to their relationship, and therefore property settlement should be adjusted accordingly.

In determining whether there had been a course of violent conduct, the court considered seven specific incidents of family violence where the victim feared for her safety. These incidents were increasingly frequent, and more likely when the husband was under the influence of alcohol. Each incident involved the husband in a rage, yelling abuse at his wife and banging clenched fists against tables, chairs and walls. As a result of this, Mrs Kennon was diagnosed with anxiety, anorexia, depression and various other stress-induced illnesses. 

Mr Kennon was annually earning $1 million, compared to his wife’s $45,000, and therefore he was the major contributor of assets to the relationship. Their case in 1997 meant that their property settlement was completed with consideration of the violent conduct perpetrated against Ms Kennon.

After taking into account family violence when assessing the parties’ contributions, the Full Court on appeal increased Mrs Kennon’s property settlement entitlements from $400,000 to $700,000. 

What must be established for a Kennon test to be successful?

An adjustment in property settlement due to family violence is known as a Kennon claim, from Kennon v Kennon. For this to be successful, the following three elements of the test must be satisfied:- 

1. An ongoing course of violent conduct;
2. A significant reduction of that party’s contributions to the marriage as a result of the violent conduct; and
3. The violent conduct made his/her contributions significantly more arduous than they ought to have been.

At Hume Taylor & Co Lawyers, we are happy to discuss the potential impact that family violence may have on property settlements in family law proceedings.  

This blog was written by Senior Associate Linna Tran, with Law Clerk and second-year law student Olivia Walker.

Further support

If you have been a victim of family violence, or if any of this content is distressing and you are seeking support do not hesitate to contact the relevant support services listed below:

• If you are in immediate danger call 000 for emergency Police and Ambulance assistance
• For crisis counselling, support and referral to safe accommodation call 24 hour Domestic Violence Crisis Line on 1800 800 098
• For sexual assault, domestic family violence information, counselling and support services dial 1800 RESPECT

More can be found at: https://www.whiteribbon.org.au/Find-Help/Help-Lines