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Does Family Violence Affect a Property Settlement in Family Law: Kennon and Kennon

Although conduct is not generally relevant to family law property settlements, in some cases, serious violent conduct perpetrated by one party of the relationship towards the other can impact upon that person’s ability to contribute to the relationship or otherwise make contributions significantly more arduous than they ought to have been. In exceptional circumstances this may alter the overall property settlement.

The case of Kennon and Kennon [1997] FamCA 27 (“Kennon”) was the first case to recognise this principle. Kennon involved a 4 year marriage with no children. The Wife claimed that she should receive an additional percentage of the asset pool due to the assault and battery inflicted on her throughout the relationship.

In Kennon, it was established that the following elements must be present in order for a party to receive an adjustment in his or her favour in the determination of property interests on the basis of violence:

  • A violent course of conduct
  • During the marriage
  • Requires proof of a significant adverse/discernable impact upon the party’s contributions to the marriage or having made those contributions significantly more arduous.
  • Cases following Kennon suggest that:
  • there must be evidence of the relevant course of conduct and its impact upon the other party’s contributions;[1]
  • it is necessary to prove a connection between the violence and contribution;[2] and
  • the claim can only be established by probative evidence that satisfies the Court on the balance of probabilities.[3]In Kennon, the Full Court indicated that these principles only apply in “exceptional circumstances” to a “narrow band of cases.”
  • Case law also suggests that although f violent conduct need not be frequent, a degree of repetition is required.[4]

[1] Cable & Cable [2007] FMCAfam 85.

[2] Jarrett & Jarrett [2009] FMCAfam 55.

[3] Bingham & Bingham (2009) [2009] FMCAfam 99.

[4] Whitlam & Whitlam (2008) [2008] FamCA 606.

By Nicholes Family Lawyers

 

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