When is Conduct Relevant to the Division of Property following a Relationship Breakdown?

In providing advice about parties’ respective property settlement entitlements, advice as to Australia’s “no fault” laws is often provided in the context of the breakdown of the marriage. However, the case of Kennon & Kennon [1997] FamCA27 provides scope for a narrow band of cases to submit that conduct is relevant. Specifically:

“Where there is a course of violent conduct by one party towards the other during the marriage which is demonstrated to have had a significant adverse impact upon that party’s contributions to the marriage, or put the other way, to have made his or her contributions significantly more arduous then they ought to have been, that is a fact which a trial judge is entitled to take into account in assessing the parties’ respective contributions” 

Recently, a case went before the Family Court in Brisbane where the husband objected to the wife’s evidence which was described by the Judge as “multiple allegations of conduct amounting to physical, sexual, and emotional abuse of the wife by the husband throughout the history of their relationship and since separation”. In overruling the objection made by the husband, the Judge commented upon the increased attention and awareness emerging around the subject of family violence, its prevalence and its seriousness within the wider community in Australia. 

To highlight the rarity of the Court allowing evidence of this nature, the Judge commented that very few cases in which he was involved in over 32 years as a family lawyer and 9 and a half years as a Judge came anywhere near the allegations made in the case where he allowed the wife’s evidence.  Whilst the case law around violent conduct continues to evolve, it is important to bear in mind that cases continue to emphasise that these principles only apply in exceptional cases. It is important that any party involved in a case where violent conduct is alleged obtains specialised family law advice, given the discerning approach the Court will take in relation to evidence of conduct.