The impact of family violence on the distribution of property at the and of a relationship

Family violence can have an enormous impact on the Orders made by the Court in family law parenting matters. The existence of violence and abuse can also have an impact on the percentage distribution in family law property settlements where the violence has adversely affected a person’s contribution to the relationship.

In the case of Maddox and Merz (heard in the Federal Circuit Court by Judge Altobelli on 23 September 2014) the wife was awarded an extra 10 percent of the property division to take into account the impact that the husband’s demeaning abuse had on her ability to contribute to the marriage. The matter involved an 8) year marriage late in each party’s life. There was a 23 year age gap between the parties with the husband being aged 76 and the wife aged 53 at the time the case was heard. The wife received a carer’s pension from Centrelink throughout the marriage as she stayed home and cared for the husband.

In the wife’s application, she sought an extra 20 percent for her contributions to the marriage. It was undisputed that the husband had said to the wife “you are obligated to stay at home” and in evidence the husband said “if she had a brain on her head” she would still be at home looking after him. The wife asserted that she was fearful of the husband and that he had called her derogatory names throughout the relationship. She also asserted that the husband had made death threats to her prior to the Court hearing. The Court found that wherever the evidence of the husband and wife conflicted, the Court preferred the evidence of the wife. The leading case in relation to the relevance of domestic violence on family law property settlement matters continues to be the 1997 case of Kennon v Kennon which was heard by the Full Court of the Family Court. The leading principle from that case is that domestic violence will be relevant in the context of contributions where the behaviour of one party has had a significant adverse impact upon the parties. The violence must have made the victim’s contributions “significantly more arduous than they ought to have been”. Destruction of property by one party may also be relevant where it has impacted on the asset pool available for distribution and the impact of violence may impact on the future needs of one of the parties if their health continues to suffer as a result of being a victim of domestic violence.

In Maddox and Merz, Judge Altobelli was satisfied that the husband’s conduct fell within the parameters of the conduct referred to in Kennon v Kennon. He found that the husband’s behaviour had impacted on the wife by making her contributions much more difficult and that the wife should be entitled to a percentage adjustment of 10 percent in her favour as a result. The Court also found that the wife was entitled to a further 10 percent adjustment to take into account her greater future needs.

The lawyers within the Kells family law team are experienced in family law property settlement matters, including where there has been violence in the relationship. We offer confidentiality, care and understanding to victims of family violence. We assist victims by managing all correspondence and by ensuring that victims of family violence receive their full entitlements under the law.