How Family Violence Affects Property Division in Australia

How does experiencing family violence affect the division of assets when a relationship breaks down? This is a critical question for many Australians navigating separation.

Recent changes to the Family Law Act 1975 provide a clearer answer, strengthening the link between family violence and property settlement outcomes. Courts are now legally obligated to consider the impact of violence, moving beyond older case law precedents towards explicit legislative direction. If violence has affected your relationship, understanding how the law now addresses its financial consequences is essential. This article explains the breadth of 'family violence' under the Act and analyses how its effects are factored into determining a just and equitable property division

What is "Family Violence" Under Australian Law?

Before examining its impact on property settlements, it's crucial to understand what constitutes "family violence" in the eyes of the family courts. The definition is broad and goes far beyond physical assault.

Section 4AB of the Family Law Act 1975 (Cth) defines family violence as:

"violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful."  

The Act provides a non-exhaustive list of examples to illustrate the breadth of this definition, which includes (but is not limited to):

Physical Abuse: Assault, including sexual assault or other sexually abusive behaviour.

Threats and Intimidation: Stalking, repeated derogatory taunts.

Property Damage: Intentionally damaging or destroying property.

Harm to Others: Intentionally causing death or injury to an animal.

Economic Abuse: Unreasonably denying financial autonomy (e.g., controlling access to money, preventing someone from working) or unreasonably withholding necessary financial support.

Emotional/Psychological Abuse: Behaviour that torments, intimidates, harasses, or is offensive.

Coercion and Control: Behaviour that isolates someone from family, friends, or culture; unlawfully depriving someone of their liberty (e.g., preventing them from leaving the house).

Exposure of Children: Importantly, a child is considered exposed to family violence if they see, hear, or otherwise experience its effects (e.g., comforting a victim, being present during police attendance).

This broad definition reflects an understanding that violence manifests in many forms, all of which can have profound and lasting impacts.

The "Old Way": Reliance on the Kennon Principle

Prior to the recent amendments, the Family Law Act 1975 did not specifically list family violence as a factor for property division (governed by Section 79 and Section 90SM). Parties relied heavily on the precedent set by Kennon v Kennon (1997) FLC 92-757.

The Kennon principle allowed family violence to be considered if it made one party's contributions (financial or non-financial) significantly more difficult or arduous. This "negative contribution" argument required proving:

1. A course of violent conduct occurred.

   
   

2. The conduct had a significant discernible impact on the victim's ability to contribute.

This often presented a high evidentiary hurdle, requiring victim-survivors to demonstrate a direct causal link between the violence and its impact on their contributions, which could be challenging and re-traumatising.

The "New Way": Family Violence Explicitly Legislated

The Family Law Amendment Act 2023, with key changes commencing 6 May 2024, embedded the consideration of family violence directly into the legislative framework governing property settlements.

While the standard four-step process for property division generally remains (identify assets/liabilities, assess contributions, assess future needs, consider justice/equity), the Family Law Act 1975 now explicitly mandates courts consider the impact of family violence when undertaking these steps, particularly:

Contributions (Section 79(4) / 90SM(4)): The amendments solidify that the court must consider the impact of family violence on a party's ability to make contributions. This formalises the Kennon principle within the Act itself, potentially making it more accessible. The focus is on how the violence hindered or made contributions more arduous.

Future Needs (Section 75(2) / 90SF(3)): The legislation strengthens the requirement to consider family violence when assessing each party's future needs. Factors like health, earning capacity, and childcare responsibilities are assessed. The ongoing consequences of family violence (e.g., physical injury, psychological trauma impacting work capacity, ongoing medical/therapy costs, insecure housing needs) are now clearly relevant factors that can justify an adjustment in the property division.

How Allegations of Family Violence Impact Property Settlements

Raising allegations of family violence in property proceedings is not simply about stating that violence occurred; it's about demonstrating its impact on the financial aspects of the separation. Here’s how it typically plays out:

Evidence is Crucial: The court cannot simply accept allegations at face value. Substantiating claims of family violence and its effects is essential.

Evidence can include:

1. Police reports and criminal records.

2. Apprehended Violence Orders (AVOs), Violence Restraining Orders (VROs), or similar protection orders.

3. Medical records, hospital reports, or letters from doctors detailing injuries or psychological impacts (e.g., PTSD, anxiety, depression).

4. Reports from psychologists or counsellors.

5. Affidavits (sworn statements) from the victim detailing the violence and its effects.

6. Affidavits from witnesses (family, friends, colleagues) who observed the violence or its aftermath.

7. Financial records demonstrating economic abuse (e.g., bank statements showing control of funds, evidence of prevented employment).

8. Photographs of injuries or property damage.

9. Relevant communications (emails, texts – noting admissibility rules).

Linking Violence to Financial Outcomes: The legal team must clearly articulate how the evidenced violence affected the contributions made during the relationship and/or impacts the future needs of the victim-survivor.

Impact on Contributions: For example, evidence might show that due to physical injuries or constant fear, a party was unable to work or could only work reduced hours (affecting financial contributions), or that their capacity to perform homemaking and parenting duties (non-financial contributions) was severely diminished or made significantly more difficult. Economic abuse might directly demonstrate reduced financial contributions or accumulation of debt by the victim.

Impact on Future Needs: Evidence of ongoing psychological trauma (e.g., PTSD) might demonstrate a reduced future earning capacity. The costs associated with ongoing medical treatment or therapy resulting from the violence can be factored into future needs. If the violence has led to a party having primary care of children with special needs arising from exposure to violence, this also impacts future needs significantly.

Court Assessment: The court will assess the evidence presented by both parties. It considers the nature, severity, and frequency of the violence, and critically, its impact. The court weighs this evidence alongside all other relevant factors when deciding what percentage split of the asset pool is "just and equitable." A finding of significant family violence that demonstrably impacted contributions or creates greater future needs can lead to the victim-survivor receiving a larger share of the asset pool than they might otherwise have.

False Allegations: It is important to note that making deliberately false allegations of family violence can have serious consequences, potentially impacting credibility and costs orders. Legal advice should always be sought before making formal allegations.

What This Means For You

These legislative changes signify a crucial step forward in acknowledging the severe and lasting financial consequences of family violence.

Mandatory Consideration: Courts must now consider family violence as part of the property settlement process.

Holistic Impact: The focus extends beyond past contributions to include the ongoing and future financial needs created by the violence.

Emphasis on Evidence: While the pathway is clearer, successfully arguing for an adjustment based on family violence requires careful preparation and presentation of relevant evidence.

The Importance of Expert Advice

Property settlements are inherently complex legal matters. When compounded by the trauma and intricacies of family violence, understanding the process requires specialised legal expertise. The recent legislative changes offer greater recognition and potential recourse for victim-survivors, but effectively utilising these provisions demands skilled legal representation.

If you have experienced family violence and are facing separation or divorce, it is vital to understand your rights and how these laws apply to your unique situation. Our dedicated team of family lawyers offers compassionate, confidential advice. We can help you understand the process, strategically gather the necessary evidence, and vigorously advocate for a property settlement outcome that is just, equitable, and properly accounts for the impact of any violence endured.

Contact Us

We encourage you to reach out to our family law specialists for a confidential consultation to discuss your circumstances and explore your options.

Disclaimer: This article provides general information only and does not constitute legal advice. Family law matters are complex, and you should seek specific legal advice tailored to your individual circumstances from a qualified legal practitioner.