Is Domestic Violence Considered in a Property Settlement?
June, 2010
When determining the percentage division of the property in a Property Settlement, the Court takes into consideration a number of factors. These factors can include contributions, the length of the relationship, the care of any children and future needs. In situations where the Court is satisfied that Domestic Violence has occurred, the Court (“in exceptional circumstances”) can also take this into consideration when determining how the property should be divided between the partners.
The Court’s preparedness to consider Domestic Violence in a Property Settlement is referred to as the “Kennon” adjustment. This name comes from a case in which the Court made a percentage adjustment in the property division, in favour of the victim of the Domestic Violence.
How does the Court determine whether an adjustment should be made in a case involving Domestic Violence? The Court has stated that the contribution by the victim must have been made “significantly more arduous” so that it should be taken into account when assessing contributions under the Family Law Act.
In a recent case the Husband displayed violent behaviour towards the Wife and the children during their nine year relationship. The Court had to consider whether a “Kennon” adjustment should be made.
The Facts:
- The Husband, aged 44 and Wife, aged 43, were together for nine years.
- The Wife had two children from a previous relationship, aged 17 and 15.
- The Husband and Wife’s property pool consisted of a house, valued at $470,000.
- The Husband had made an ‘initial contribution’ of $40,000.
- The Wife stated that she initially contributed assets valued at $46,000, however this was disputed by the Husband.
- At the beginning of their relationship, the Husband was employed as a tradesman, however he developed an addiction to amphetamines and his employment became irregular. The Wife was employed and contributed to home duties.
- The Husband was in a serious motor bike accident, as a result he was confined to a wheel chair for sometime and cared for by the Wife. The Husband said he received $25,000 for damages from the motor bike accident, the Wife disputed this and said he received $8,000 which he used to purchase a motor bike.
- The Wife claimed that she and her children were subject to ongoing violence throughout the relationship. The Husband denied this, stating that he had never hit her but that “she gave as good as she got.”
- After the separation, the Husband was imprisoned after he breached the Intervention Order the Wife had initiated as a response to the Domestic Violence.
- Following this, the Husband went to prison for three and a half years for breaches of the Intervention Order, including intentionally destroying property and making threats to kill towards the Wife. Within hours of his release from prison, he again breached the Orders by calling and threatening the Wife.
- A Counsellor reported that the Wife suffered from a Post Traumatic Stress Disorder as a result of the violent relationship.
- The Husband argued that there should be a finding of equal contribution in the property settlement, as his greater initial contribution should be weighed against any possible “Kennon” argument.
Court Found:
- The violence was to such a level that it fell within the category of exceptional cases that could apply the “Kennon” argument.
- The Wife’s contributions to the family and maintenance of the home were made significantly more arduous as a result of the Husband’s violence.
- The Husband’s ‘initial contributions’ were outweighed by the Wife’s ongoing contributions that were made more difficult as a result of the Husband’s violence. An adjustment of 7.5 % was made to the Wife.
- A 10% adjustment in the Wife’s favour was also made, as she had the full time care of her children and the effect from the violence limited her capacity to work.
Court Order:
- The Wife received 67.5% of the property pool.
Disclaimer
The information contained on this site is for general guidance only. No person should act or refrain from acting on the basis of such information. Appropriate professional advice should be sought based upon your particular circumstances because the application of laws and regulations undergo frequent changes. For further information, please do not hesitate to contact Michael Lynch Family Lawyers on law@mlynch.com.au.