Domestic Violence and Property Settlement

Property settlements are determined based on the contributions of each party to the relationship, both in a financial and non-financial sense, as well as the future needs of each party. The court generally does not consider the conduct of the partners during the course of the relationship when making a determination – for example, infidelity would not impact a property settlement except to the extent it decreased their contributions such as by not contributing to the parenting of any children or by spending the assets of the relationship on the affair partner. However, what if one party was the perpetrator of family violence against their partner? Would that have an effect on property settlement?

This question was examined in the leading case of In the Marriage of Kennon (1997). This case involved a husband who had a significantly higher income than the wife, and who had much greater initial contributions to the relationship as well – that is the husband was worth approximately $8.7million at the time of trial, whereas the wife had less than $100,000 assets to her name. The wife alleged that the husband had engaged in significant domestic violence against her, and that this should result in an adjustment in her favour. The wife described the husband as being prone to fits of rage, and alleged incidents of physical violence and psychological injury by way of an anxiety disorder.

The court considered the issue and found that sections 75 and 79 of the Family Law Act could be used to assess the financial consequences of domestic violence. Three elements must be established before such an assessment can be made:

1.     Can the party establish that there has been a course of violent conduct?

2.     Has the violent conduct had a discernible impact on the victim?

3.     Were the victim’s contributions to the relationship made significantly more arduous because of the domestic violence?

Importantly, it is not enough to make generalized allegations of violence, and that specific instances of violence must be established.

What does this mean for victims of domestic violence?

Unfortunately, the current caselaw has established that property adjustments cannot be made simply because a person has been the victim of serious domestic violence. The victim must go further and prove that their contributions were made significantly more arduous by the violence. If they cannot prove that the domestic violence impacted their ability to contribute to the relationship, even if the court were to find violent conduct, it would have no impact on the property settlement.

Any adjustment made in favour of the victim is not intended to be compensatory, but instead to be a recognition of the extraordinary efforts the victim would have had to make in persisting with contribution in the face of enormous and unjustified adversity. It is difficult to quantify the effect of domestic violence on contributions – in the case of Kozovska & Kozovski, the court made adjustments for the victim by 10 percent, whereas in the case of Dixon & Dixon, adjustments were made for the victim by 20 percent.

What does ‘significantly more arduous’ mean?

There is no specific standard by which a judge will test a case as meeting the ‘significantly more arduous’ requirement. Each case will turn on its own facts. However, the most common scenarios are:

1.     Where the family violence has caused or exacerbated a psychological injury, such as anxiety or depression, which impacted the victim’s ability to work or contribute as homemaker and parent; and

2.     Where the family violence caused physical injury, resulting in the victim not being able to work for a period of time or otherwise made homemaking and parenting duties more arduous.

It is also very common that the victim of family violence will have primary care or sole responsibility for the children of the relationship, and this will frequently lead to a further adjustment in favour of the victim.