Generally, the court will not consider domestic violence in relation to a property settlement. However, where there is evidence that there was a course of violent conduct by one party towards the other during the marriage which has demonstrated to have had a significant adverse impact upon that party’s contributions to the marriage or to have made his or her contributions significantly more arduous than they ought to have been, then a judge is entitled to take into account the violent course of conduct in assessing the parties’ respective contributions.
The principle derives from the case of Kennon & Kennon, a historic decision handed down by the Family Court over 20 years ago. Prior to this case, the Court was hesitant to consider domestic and family violence in a property settlement.
It is necessary to provide evidence that demonstrates:
- The incidences of domestic violence, and;
- The effect of domestic violence on the victim’s ability to contribute during the relationship.
The Court’s position is that there does not need to be corroborating evidence of the domestic violence as the domestic violence usually occurs behind closed doors, however, there must be a nexus between the conduct complained of and the victim’s capacity to contribute during the relationship.
It is important to remember that the Kennon principle will only be applied in exceptional cases; it is the exception, not the rule.
If you are a victim of family violence, you should seek immediate advice from a family lawyer and contact our office on (07) 4052 0700.