Domestic Violence Considered in Family Court Property Settlements

The Family Court has increasingly acknowledged the impact of domestic violence in property settlements. In one notable case, the court took into account the ongoing domestic violence a wife endured and the post-traumatic stress she suffered at the hands of her husband when deciding the division of their property pool.

Case Overview

The couple, who were together for seven years before marrying in 2003, separated in 2005. During their relationship, the husband:

• Committed multiple acts of assault against the wife.
• Stalked and threatened to kill her.
• Breached 22 protection orders issued for the wife’s safety.

The primary asset in the property pool was their family home, valued at $309,000. Despite the husband contributing more financially toward its purchase, the wife’s legal team argued that her contributions—made under the strain of continuous domestic violence—were significantly more burdensome.

Court Decision

The Court deemed this an exceptional case, recognizing that:

• The violence and its traumatic effects made the wife’s contributions more onerous.
• The husband’s greater financial contribution was outweighed by the wife’s efforts and resilience under such circumstances.

As a result, the Court awarded the wife 67.5% of the property pool, rather than the equal share sought by the husband.

Should Conduct During Marriage Influence Property Settlements?

The case raises an important question: Should conduct, such as domestic violence, be considered when determining property interests?

Historically, the Family Court has downplayed or ignored the effects of domestic violence in property settlements. However, there is a growing recognition that in exceptional circumstances, such conduct should influence the division of property.

Reforms and Challenges in Acknowledging Domestic Violence

The inclusion of domestic violence in family law cases has been slow but is gaining traction. A report commissioned by Minister for Women, Jodi McKay, titled "No Way to Live: Women’s Experiences of Negotiating the Family Law System in the Context of Domestic Violence" highlighted key issues:

• Women often reported that their claims of abuse were dismissed or treated as fabrications.
• The report supported the Family Law Council's recommendations to expand the definition of family violence to include broader forms of threatening and controlling behavior.

The Family Law Act and Domestic Violence

The Family Law Act 1975 (Cth) has provisions addressing family violence, particularly in parenting matters. However, its application in property settlements remains less defined. The recognition of domestic violence in property matters may rely on:

• Demonstrating the impact of violence on one party’s contributions.
• Proving that the violence created exceptional circumstances justifying a departure from standard property division principles.

Encouraging Change

There is a pressing need for Family Courts to encourage the disclosure of abuse and to provide adequate support for victims. Broader acknowledgment of the effects of domestic violence in property settlements represents a significant step toward fairness and justice in family law.