A Family Lawyer Perspective on 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 and if family violence has affected a person's current and future circumstances.

Recent amendments to the Family Law Act 1975, effective from 10 June 2025, under the Family Law Amendment Act 2024, have further clarified and strengthened the role of family violence in property settlement in Australia.

Family Violence and Its 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.

The 10 June 2025 changes to the Family Law Act explicitly recognise the impact of family violence on a party's ability to contribute. The amendments emphasise that family violence can create significant barriers to a party's ability to make contributions, whether financial or non-financial, and courts are now required to give appropriate weight when assessing contributions made by a party.

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.

The 10 June 2025 amendments to the Family Law Act reinforce the principles established in Kennon by codifying the court's ability to consider family violence in contribution assessments. This legislative change ensures that victims of family violence are afforded consistent and equitable treatment in property settlement matters.

Family Violence and the Effect on Current and Future Circumstances in Property Settlement

Prior to 10 June 2025, a family violence claim could be made as a section 79(5) (formerly section 75(2)) or future needs claim.

Following the 10 June 2025 amendments, broad consideration can be given to family violence and the effect on current and future needs.

Section 79(5)(a) of the Family Law Act states:

the effect of any family violence, to which one party to the marriage has subjected or exposed the other party, on the current and future circumstances of the other party, including on any of the matters mentioned elsewhere in this subsection;

This broadly allows the court to consider the effect of family violence by one party on the other, on the current and future circumstances of the party.

In summary, family violence can play a significant role in family law property settlement decisions, provided the conduct had a discernible impact on the victim:

1. Making a party's contributions to the relationship difficult or more arduous; and/or

2. Affecting a party's current and future circumstances;

   
   

The courts can consider the impact of family violence in the context of the effect of such conduct on (1) their contributions and consider this when making adjustments for contributions, and (2) the effect on the current and future circumstances, and consider these factors when making adjustments for current and future circumstances.