A Family Lawyer Perspective of How Family Violence May Be Considered in Family Law Property Settlement and Kennon Claims

When determining a family law property division after the breakdown of a marriage or de facto relationship, family law courts consider a range of factors, which may include family violence if it made a person's contributions difficult or more arduous.

When approaching family violence considerations in a property settlement, it is important to consider the allegations of family violence made, the supporting evidence, the standard of proof and the effect that the family violence has had on the contributions by a party to the marriage.

Family Violence and the Effect on Contributions

During a family law property settlement, the court will assess each party's contributions before, during and after the relationship.

These contributions can be financial contributions to property, non-financial contributions to property, or non-financial contributions such as homemaking and parenting duties. Contributions can be made directly, or indirectly such as supporting the other party’s career by staying home to look after children or paying bills so a partner can pay for an investment property in their sole name.

Kennon Claim - When Family Violence Can be Considered in Family Law Property Settlement

In some circumstances, if one party has been a victim of family violence at the hands of the other, the family violence and abuse may have affected their contributions or their ability to contribute. In the family law case of Kennon v Kennon [1997] FamCA 27, the court considered whether family violence could influence the outcome of a property settlement.

In the case of Kennon, the court held that it could assess the financial consequences of family violence on a property settlement if three elements were satisfied:

1. A course of violent conduct must be established.

2. The violent conduct must have a discernible impact on the victim.

3. The victim’s contributions to the relationship must be significantly more arduous as a result of the violent conduct.

When these conditions are met, the court may adjust the division of matrimonial assets in the victim’s favour. It should, however, be noted that a Kennon claim is only an adjustment based on contributions and not a future needs adjustment.

Family Violence and the Effect on Future Needs in Property Settlement

A Kennon claim cannot be made as a section 75(2) or future needs claim.

A future need must only be established on a future need basis, and causation from family violence does not need to be shown. A court may be considered falling into error should it base its granting of a future needs claim on whether the need was caused by family violence.

Assessing Family Violence in the Property Settlement Process

Interestingly, in the case of Loncar & Loncar [2021] (2021) 64 Fam LR 446, the court clarified that while family violence may be considered at the second step of the property settlement process being the contributions considerations, it does not warrant quarantining the contribution adjustment from consideration at the third step as to future needs.

In summary, family violence can play a significant role in family law property settlement decisions, provided the conduct had a discernable impact on the victim, making a party's contributions to the relationship difficult or more arduous. The courts can consider the impact family violence has had within the broader context of contributions and adjustments.