Since 1975 the family law system in Australia has operated under a “no-fault” divorce standard, meaning that a court will not consider which party to a relationship was responsible for its breakdown. When considering how the assets of a relationship will be divided, a court will instead study the financial and nonfinancial contributions of the parties to the relationship.
But what happens to the division of assets if one party’s contributions have been lessened due to the conduct of the other party?
The Kennon Principle
In 1997, the case of Kennon and Kennon considered whether the presence of domestic violence should impact the results of a property settlement. In that case, it was argued that though the husband had made significantly higher financial contributions than the wife she was owed a favourable property adjustment as her ability to contribute to the relationship was negatively impacted by domestic violence (“the Kennon Principle”). The husband was alleged to have commonly engaged in excessive drinking, which would subsequently result in fits of rage physical violence towards the wife. The victim’s doctor had diagnosed her with a psychological injury and anxiety as a result.
The wife’s plea was eventually successful on appeal. The Full Court of the Family Court awarded the wife a higher percentage of the property settlement than she might have ordinarily received as the domestic violence had a discernible impact upon her contributions.
The Kennon Principle has received much criticism over the years. In practice, there is a very high threshold for being able to demonstrate not only the presence of domestic violence during the relationship but what “discernible impact” the violence has had over a party’s contributions. The mere assertion of domestic violence is not enough for a party to claim a greater percentage of the relationship assets, it has to be evidenced.
It is worth noting that the Court will require the domestic violence to have occurred within the relationship period to apply the Kennon Principal, despite that it may impact other factors the Court will consider when dividing the asset pool, such as future capacity to earn a living. This was made clear in another case of Belmore & Belmore where the husband was convicted of seriously assaulting the wife after separation. The Court was not satisfied that there was enough evidence of domestic violence within the relationship that it could have impacted on the wife’s contributions, and so Kennon was not applied.
The Law Versus Reality
The terrible reality of domestic violence is that it often occurs behind closed doors without witnesses or visible effects. Domestic violence can be both physical and psychological, and unless a victim is able to evidence their abuse the Kennon Principle may not be able to be used successfully in their claim. That the Court has stated in Kennon that its ruling may only apply to exceptional cases does not marry to the fact that 1 in 6 Australian women has experienced physical or sexual violence by their current or former partner, and that 1 in 4 Australian women has experienced emotional abuse by a current or former partner.
The 2019 case of Keating & Keating demonstrates just how quickly the Kennon Principle can be initially dismissed by a Court due to a lack of quantification of the impact of domestic violence on a party’s contributions. Though the wife in this matter claimed that the husband had previously broken her nose, beaten her unconscious, broken her ribs and wrist and had undermined her parenting, the Court initially dismissed most of her claims of domestic violence because her evidence was not corroborated.
Happily, the wife’s appeal to the Full Court of the Family Court succeeded and the original finding was put aside and remitted to the Federal Circuit Court for rehearing. It was found that a party cannot always be required to have their claim corroborated in instances of domestic violence where there may often be no third parties present. The Full Court has directed the judiciary to instead examine the impact of the alleged violence on the contributions.
So What Does This Mean For Me?
Domestic violence is a notoriously insidious and undiscussed topic which remains a rampant issue in Australia. Cases such as Kennon and Keating should serve as warnings for victims of domestic violence that they should not suffer in silence lest they suffer both in the relationship and in the separation.
Such victims should be aware that their ability to contribute to a domestic relationship may be being negatively impacted in various ways, including but not limited to:
- Physical injury preventing a them from engaging in gainful employment, household duties or parenting duties;
- Being prevented by a controlling partner from being employed; and/or
- Psychological injury or illness making it too arduous for a victim to reasonably contribute to the relationship.
Though Keating demonstrates that corroboration is not always necessary to demonstrate domestic violence, seeking help from personal and professional sources may not only assist you in removing yourself from a potentially life-threatening situation but can also help demonstrate what you have suffered. Keeping track of medical and other relevant records is highly recommended, and speaking to a family law specialist can help you identify and document the ways in which your contributions are being impacted.
If you are a victim of domestic violence, our team of family lawyers are ready to help you immediately. We offer free no obligation first consultations to make sure you find the right lawyer to support you. Give Websters Lawyers a call today on 8231 1363 or contact us here.