Domestic Violence & Family Law Property Settlements
Violence can, sadly, be an all too common element of some domestic relationships. Courts hearing family law property settlement matters do, however, have the discretionary scope to award additional assets to the party subjected to the abuse. The relevant legal principles are derived from the case of Kennon v Kennon [1997] FamCA 27.
What is a Kennon claim?
A Kennon claim seeks an adjustment in favour of a party whose contributions to the asset pool during the relationship and/or post-separation were made significantly more difficult as a result of family violence carried out by their spouse.
Kennon claims can only be determined at trial.
For a party to be successful with a Kennon claim they must produce evidence that:
- establishes a violent course of conduct by the other party;
- illustrates the manner in which their ability to contribute to the asset pool was significantly impacted by the family violence; and
- enables the court to quantify the effect of that family violence on their capacity to contribute.
It should be noted that a Kennon claim adjustment is not awarded by the court as a means of compensation, punishment, or deterrence. Rather, the adjustment is a ‘symbolic recognition of the extraordinary efforts of one spouse in persisting with contribution in the face of enormous and unjustified adversity.’ (Kozovski & Kosovski [2009] FMCA Fam 1014, per Altobelli J)
How have courts treated Kennon claims?
An independent review of judgments between 2006 and 2012, published in the Australian Journal of Family Law in 2014, revealed that the average adjustment for successful Kennon claims during that period was 7.3%. This is consistent with more recent cases involving successful claims, with adjustments tending to range between 5 – 15% in favour of the claiming spouse. Generally, these cases involved:
- physical, verbal, sexual abuse;
- controlling, intimidating, oppressive behaviour; and/or
- other various forms of abuse.
What is the future for Kennon claims?
The Joint Select Committee on Australia’s Family Law System released an interim report in March 2021 detailing proposed reforms. One of the recommendations was for the Family Law Act 1975 (Cth) to be amended to specifically identify the impact of family violence as a relevant consideration for the purpose of determining property settlement applications. If the Act is amended as proposed, there may be a change to the manner in which property settlement cases involving family violence are negotiated and/or adjudicated by the courts. Ideally, any such amendment will allow the destructive effects of family violence to be brought more readily to account in the context of family law property settlement matters.
For the time being, the courts will continue to deal with family violence in property settlements in accordance with the principles established in Kennon.
If you, or a person you know, are being subjected to family violence, please contact:
- in an emergency: 000;
- for police attendance: 131 444;
- Domestic Violence Crisis Line: 1800 800 098;
- 1800 RESPECT: 1800 737 732.
If you require assistance in relation to any family law enquiry please contact Christopher Mason on +61 8 8210 1231 or cmason@normans.com.au, or Danny Marr on +61 8 8217 1332 or dmarr@normans.com.au.
