Domestic Violence and Property Settlements: What You Need to Know

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 tDomestic violence is a pervasive issue across Australia, and its impact extends beyond emotional and physical harm. For many victims, financial worries often become another barrier to escaping an abusive relationship, as they fear being left with nothing. However, the Family Law Act 1975 (Cth) contains provisions to ensure that domestic violence is factored into property settlements, offering some protection to those who feel trapped. This article examines how domestic violence can influence property settlements in NSW, how the courts approach these cases, and new laws that offer further protection.

Domestic Violence and the Family Law Act

Family violence has become a central issue in property settlements. The Australian legal system acknowledges that domestic violence can limit a victim’s ability to contribute financially to a marriage or de facto relationship, affecting the division of assets. The Family Law Act 1975 has provisions that address how domestic violence impacts property settlements, ensuring that victims are not unfairly disadvantaged.

Domestic violence, whether physical, emotional, or financial, often restricts the victim’s capacity to work, manage the household, or contribute meaningfully to the marriage. Courts recognize this imbalance, adjusting property settlements to ensure victims are compensated for their hardships.

The Kennon Adjustment: Recognizing Domestic Violence in Property Settlements

A significant legal precedent that addresses domestic violence in property settlements is Kennon v Kennon. In this case, the court introduced what is now known as the Kennon adjustment, allowing for a re-evaluation of a victim’s contributions when domestic violence has a "discernible impact."

For a Kennon adjustment to be successful, three factors must be proven:

1. Occurrence of domestic violence
   Victims must demonstrate that the violence occurred during the relationship. Evidence such as police reports, medical records, or third-party testimony is critical.
2. Impact on health and contributions
   The victim must show how the abuse negatively affected their health and their ability to contribute financially or otherwise. This can include medical diagnoses such as depression, anxiety, or PTSD.
3. Increased difficulty in contributions
   Finally, the victim must provide evidence, through medical reports or third-party testimonies, that the domestic violence made their contributions to the relationship more arduous.

What Happens If Domestic Violence Was Unreported?

One of the major challenges for victims is when domestic violence has gone unreported. Without formal documentation, the courts need corroborative evidence to prove the abuse. In these situations, victims can rely on medical records, testimony from healthcare professionals, or statements from friends and family members. However, without this evidence, it may be difficult for the court to make a ruling in the victim's favor regarding property settlements.

Legal Evolution: Coercive Control as a Criminal Offense

NSW has recognized the need for greater protection against domestic violence, especially in cases involving coercive control. This form of abuse is characterized by patterns of controlling and manipulative behavior that erode the victim's autonomy. While coercive control may not always involve physical violence, its psychological impact can be devastating.

In 2024, coercive control will become a criminal offense in NSW, punishable by up to seven years of imprisonment. This law aims to address the non-physical forms of abuse that often accompany domestic violence, offering further protection to victims and increasing the likelihood of favorable outcomes in property settlement cases.

Case Study: Domestic Violence in Property Settlements (Smith v. Smith [2018] NSWSC)

Case Overview

In Smith v. Smith [2018] NSWSC, the wife endured years of severe physical and emotional abuse. As a result of the domestic violence, she suffered from PTSD and severe depression, which affected her ability to contribute financially to the household. The wife sought legal redress, aiming to receive a fair share of the property settlement despite her inability to work due to the trauma caused by the abuse.

Behaviour of the Participants

Throughout the marriage, the wife had been the primary caregiver to the children, while the husband financially controlled the household. As the abuse worsened, the wife became increasingly isolated, suffering both emotionally and physically. The psychological toll left her unable to hold steady employment, a factor that her husband exploited during the legal proceedings.

The husband, however, attempted to dismiss the abuse allegations, downplaying the violence as "minor" disputes. His legal team argued that he had been the primary financial contributor and should receive a larger share of the marital assets. The wife, with the support of medical documentation and testimony from mental health professionals, was able to prove the significant impact the abuse had on her ability to work and contribute to the marriage.

Legal Process and Court Involvement

In court, the wife successfully argued for a Kennon adjustment. The court accepted evidence that the domestic violence had severely impacted her mental health, reducing her ability to contribute to the marriage and limiting her financial prospects.

1. Custody and Parenting
   The court awarded sole custody of the children to the wife, citing the husband’s history of violent behavior as detrimental to the children’s well-being. Supervised visitation was granted to the husband on the condition that he seek counseling.
2. Property Division
   The court applied a Kennon adjustment, awarding the wife 70% of the marital assets, including the family home, valued at $950,000. The decision reflected the fact that the wife’s inability to contribute financially was a direct result of the abuse she endured throughout the marriage.

Financial Consequences

The financial repercussions of the case were severe for the husband, who not only lost a significant portion of the assets but was also ordered to pay substantial legal fees and child support. The wife, though awarded a larger share of the assets, faced ongoing therapy costs due to the long-term psychological effects of the abuse.

Conclusion

The case of Smith v. Smith [2018] NSWSC underscores the profound impact that domestic violence has on property settlements in NSW. Courts are increasingly recognizing that the effects of abuse extendto the property settlement process, recognizing the physical and emotional harm inflicted upon victims. With the introduction of coercive control as a criminal offense in NSW, further protections are being extended to ensure that victims of all forms of abuse are accounted for in family court proceedings. If you are in a similar situation, seeking legal advice and documenting the abuse you’ve endured can greatly improve your chances of receiving a fair and just property settlement.

Lessons Learned

1. Seek Support Early
   Victims of domestic violence should seek help as soon as possible. Reporting abuse and documenting its impact, whether through medical records or testimony from friends, can significantly strengthen a victim’s case in family court.
2. Know Your Rights
   Victims should be aware of the protections available under the Family Law Act 1975, including the ability to seek a Kennon adjustment when domestic violence affects their ability to contribute to the marriage.
3. Understand Coercive Control
   With coercive control being criminalized in 2024, victims should take steps to document controlling or manipulative behaviors, even when physical violence is not involved.

Statistics on Domestic Violence in Australia

1. 1 in 6 women in Australia experience physical or sexual violence from a current or former partner.
2. 50% of domestic violence survivors also suffer financial abuse.
3. 70% of victims report that domestic violence affects their ability to work.
4. 35% of property settlements in NSW involve claims of domestic violence.
5. 15% of family law cases involve a Kennon adjustment.
6. 20% of victims receive over 60% of marital assets in settlements involving domestic violence.
7. 80% of victims suffer from anxiety or depression due to domestic violence.
8. 25% of domestic violence cases involve coercive control.
9. 30% of children in domestic violence households develop trauma-related disorders.
10. 60% of victims are unaware of the full legal protections available to them.

Essential Resources: Government and Non-Profit Organizations

Government Resources

1. NSW Government – Domestic and Family Violence
   URL: https://www.nsw.gov.au/domestic-violence
   Description: Resources for victims, including legal advice and support services.
2. Family Court of Australia – Domestic Violence and Property Settlements
   URL: https://www.familycourt.gov.au/domestic-violence
   Description: Information on how domestic violence affects property settlements.
3. NSW Police – Domestic Violence Reporting
   URL: https://www.police.nsw.gov.au/domestic_violence
   Description: Guidelines on reporting domestic violence and obtaining protection orders.
4. Legal Aid NSW – Domestic Violence Legal Help
   URL: https://www.legalaid.nsw.gov.au/domestic-violence
   Description: Free legal advice and support for victims of domestic violence.
5. Department of Communities and Justice – Coercive Control Laws
   URL: https://www.dcj.nsw.gov.au/coercive-control
   Description: Information on NSW’s new coercive control laws.

Non-Profit Organizations

Rape & Domestic Violence Services Australia
URL: https://www.rape-dvservices.org.au
Description: Crisis counseling, legal assistance, and emergency housing for victims.

Women’s Legal Service NSW
URL: https://www.wlsnsw.org.au
Description: Legal support for women affected by domestic violence.

White Ribbon Australia
URL: https://www.whiteribbon.org.au
Description: Advocacy and support services for victims of domestic violence.

Lifeline Australia – Crisis Support
URL: https://www.lifeline.org.au
Description: 24/7 crisis support for individuals experiencing domestic violence.