What’s the impact of violent conduct on parties’ contributions to a relationship? Should family violence be relevant to how property is divided? There is often more focus in the media on the nexus between family violence and parenting matters in the family courts. But the family courts have accepted that family violence is relevant to financial matters. Yet, it is still rare for property settlements to be adjusted due to allegations of family violence. One method for victims to potentially obtain an adjustment based on family violence is to proceed with a Kennon argument. So what is a Kennon argument? Let’s look at this important aspect of matters involving family violence and property settlement.
(Family violence and property settlement…continued)
The term “Kennon argument” or “Kennon rule” describes the findings of a significant family law case from 1997. Kennon & Kennon was the first major decision of the Full Court where violence was regarded as being relevant to property proceedings. In the case, the argument was successfully made that family violence perpetrated by one party had a “significant adverse impact” on the other party’s contributions, making them more “arduous” and justifying an adjustment.
Before the historic Kennon decision, courts were reluctant to factor family violence into a property settlement. So the Kennon case was seen as having “opened the doors” for family violence victims to argue violence was relevant in their property proceedings as well as parenting ones. However, the rule has not clearly defined what evidence is needed and how to work out what the impact was on contributions. And in reality, it has been quite hard to succeed with a Kennon argument.
Myriad of contributions
Contributions are dealt with under sections 79(4) and 90SM(4) of the Family Law Act (for married and de facto couples respectively). However these sections don’t actually mention family violence or violent conduct. Case law has therefore provided the authority for decisions on contributions made by parties during a relationship when family violence is a factor.
Family violence and property settlement decisions relating to the Kennon argument have established that any contributions that were allegedly made more arduous due to family violence have to be considered holistically with the myriad of all other contributions. Any submissions about Kennon contributions are considered together with all other contributions rather than being separated and weighed against each other.
Where a course of violent conduct has a significant effect on a party’s contributions, the courts can take this into account when working out orders for property distribution. However, the courts have established that the Kennon rule should only apply in “exceptional cases”, and must not be used for tactical or strategic reasons.
A recent Kennon case
A recent family court matter, Koch & Kest (court-appointed pseudnyms) saw a wife successfully argue the Kennon argument. In the property proceedings, the wife asked that her contributions be seen as more onerous due to the perpetration of family violence by the husband. In the trial the wife documented a long history of family violence of which the court said, “There can be little doubt that the husband engaged in serious family violence, involving physical violence…”
“It might be considered that the circumstances established by the wife, where she was subjected to violence, where she dealt with the husband’s violence to their daughter, where she conducted the post separation parenting of the children under threat of surveillance, and threat of eviction by the husband, would constitute the sort of circumstances that could support a finding that her contributions were made significantly more arduous in a qualitative sense by the conduct of the husband.”
Despite there being difficulties with quantifying the subjective impact of the family violence on the wife’s contributions, “against the fertile ground of abuse and violence that the wife has established” the wife was ultimately able to obtain a Kennon adjustment. The assessment of the contributions as a whole, including the arduous ones, favoured a 5% adjustment towards the wife.
Criticisms of the Kennon rule
The Kennon rule has been criticised as being too narrow as to be helpful in many cases. There remains the problem of how courts should assess the way that contributions were made more arduous due to family violence. There are also arguments that the Kennon rule doesn’t comprehensively deal with the real consequences of family violence. And so far there have been no firm definitions of “discernible impact” or “arduous”. With Australia in a long phase of family law reform, it’s thought that legislative reform is needed in this area as well.
How to succeed with the Kennon argument
Meanwhile, although rarely used, the Kennon argument remains an option during a property settlement if family violence has affected contributions. The key of course is to satisfy the court that there’s a causal link between the violence and the contributions being affected. As the Kennon decision established, it is necessary to provide evidence of:
- the incidence of family violence;
- the effect of family violence; and, crucially,
- how the court can quantify the effect of the violence on a party’s capacity to contribute.
Is family violence and property settlement relevant to your circumstances? If you are considering running a Kennon argument in your property settlement, ensure you speak with a family lawyer to determine the likelihood of success, and the kinds of evidence that might help.
You can read the above-mentioned judgment in full here.
For assistance with a property settlement or other family law matter, please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Family Law on (02) 6223 2400.
Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance Family Law.
Read our tips on dealing with family violence in the time of Covid.
