Domestic violence numbers are on the rise all over the country. The true impact of family violence can never be known. What is known is that many victims of domestic violence find themselves feeling stuck and worried that if they leave, they will leave with nothing. The reality is that there are some laws in place to protect families and individuals living through these issues. In this article, we will explore how domestic violence impacts property settlements in family court and discuss new laws that are being created to extend further protections.
Over the years, there has been an increasing emphasis on the true impact that family violence has on a family and its relevance to a property settlement.
Family violence has a prominent place in the Family Law Act 1975 (Cth) (‘the Act”)
The Kennon Adjustment/Rule:
Historically, the leading case where a party to a marriage has received an adjustment under section 79 of the Family Law Act 1975 (Cth), due to family violence was Kennon v Kennon. Known as a “Kennon adjustment” in the everyday language used amongst lawyers, the rationale for an adjustment to the calculation of each party’s contributions in a property settlement as a consequence of family violence was explained in this case.
For a Kennon adjustment to be successful, it is necessary to show that the conduct occurred during the course of the marriage (or de-facto relationship) had a “discernible impact” upon the contributions of the other party. Such evidence which would be required to demonstrate this includes:
- The incidence of domestic violence – has this been reported to the police of the Department of Communities and Justice or to your healthcare provider?
- The effect of the domestic violence – has the domestic violence inflicted upon the parties caused anxiety, post-traumatic stress disorder or depression?
- Evidence to enable to the court to quantify the effect of that violence upon the party’s capacity to “contribute” – This means that there are medical reports or other documentation supporting the victim’s Kennon argument as the infliction of domestic violence making their contributions more arduous.
What If There Was No Reporting?
In these cases, it is essential to establish corroborative evidence that family violence has occurred.
The court cannot accept that they would never make a positive finding that such violence occurred without corroborative evidence from a third party, a document, or an admission.
Without the court being satisfied with the evidence presented, it is unclear how domestic violence cases will impact your property settlement in family court.
Laws Are Changing
The Criminal Courts are starting to implement terms of imprisonment for family violence. Added To these laws will be Coercive Control. Coercive Control is a form of family violence that involves patterns of behaviour that have the cumulative effect of denying victims/survivors their autonomy and independence. This abuse can involve physical, sexual, psychological or financial abuse.
The Criminal Courts are in the process of implementing coercive control as a criminal offence. This law will be made cement in 2024.
The new law will create an offence to carry out repeated abusive behaviour to a current or former intimate partner and will carry a sentence of up to seven years in jail.
Here at CM Lawyers, we have years of experience in dealing with Kennon arguments at both interim and final hearings. If you have any questions, please Contact US Today.
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