Family law courts increasingly consider the impact of domestic violence when dividing the property pool after a divorce

The fact that family violence occurred during a marriage does not automatically affect a Family Law Court’s decision when it makes a property settlement for a divorcing couple. Under some circumstances, however, the impact of domestic violence can influence the court’s division of the property pool.

How property settlements are made

When a Family Law Court in Australia makes a property settlement after a divorce, it considers the contributions that each party made to the marriage. The court must take into account both financial and nonfinancial contributions. Financial contributions include the money and property that each party brought into the marriage, the money that they earned during the marriage, and the income their investments earned. Non-financial contributions include the time each party devotes to the parenting and housekeeping duties that make it possible for the other party to work outside the home.

In addition to contributions, the court must consider other relevant factors to assure that the property settlement is fair. Among those factors are the ages of the parties, the length of the marriage, and the ability of each spouse to earn an income.

The impact of domestic violence

The statute governing property settlements in Australia does not expressly require a court to alter the settlement it would otherwise make based on the domestic abuse that one spouse has endured. Australian courts have nevertheless recognized that the consequences of abuse may have a bearing upon a party’s financial circumstances. To the extent that domestic violence has made it more difficult for a party to earn a living, the property settlement can be adjusted to accommodate that circumstance.

An obvious example of the impact domestic violence can have on financial circumstances is a serious injury inflicted upon one spouse by another. If a physically disabling injury prevents a spouse from working or decreases the spouse’s earning capacity, that fact would justify awarding a larger share of the property pool to the disabled spouse. Since “marital fault” is not a factor that courts deem relevant to property settlements, the result would be the same whether or not the injury was caused by domestic violence.

The changing view of courts

While early cases decided after the Family Law Act 1975 took effect firmly established the rule that “marital fault” is not relevant to property settlements, that doctrine was widely criticized as unfair to domestic abuse victims. The more recent view that courts have adopted, while not abandoning the rule that “martial fault” should not be considered, give greater weight to domestic violence as a factor that influences property settlements.

Courts today are more likely to recognize that domestic violence produces psychological as well as physical injuries. Years of torment may be psychologically damaging even if it causes no physically disabling injury. Harm to a spouse’s emotional well-being may have a devastating impact on that spouse’s earning capacity. That impact, in turn, may justify awarding an increased share of the property pool when the court makes a property settlement.

Lawyers for domestic violence victims are increasingly turning to psychologists, therapists, and other mental health professionals to provide expert evidence in family law cases that involve property settlements. Those experts can often provide persuasive testimony that results in a better financial outcome for domestic violence victims.

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