Does domestic violence matter in a property settlement case?

Does domestic violence matter in a property settlement case?

Does domestic violence make a difference in a property settlement case?

In September this year, our Prime Minister, Malcom Turnbull announced a $41 million pledge to tackle domestic violence in Australia. What a great step forward. Thanks, Malcom. The issue of domestic violence in Australia is finally getting some much needed attention and hopefully our Prime Minister’s pledge will go a long way towards advising and assisting victims, and educating the nation to the point where DV becomes “un-Australian”.

What about domestic violence in a family law context though?

As family law practitioners, victims of domestic violence often tell us that they were in an abusive relationship with their former partner; and the conversation which flows from that, aside from talking about the different avenues of protection and counselling, is a conversation about whether the violence matters, in a financial sense. In other words, are victims of domestic violence entitled to a greater percentage division of the asset pool in a property settlement? The answer is that it depends on the facts in each case.

Generally speaking, the Court will take it into consideration if the contributions of a person (i.e. contributions towards the assets owned by each person and/or to the home and/or as a parent) were made onerous because of the violence of the other person during the relationship. Some things to note:

  1. The abused person will need to show more than just isolated incidents of domestic violence during a relationship. The abused person needs to show a connection between the domestic violence and the difficulty in making contributions to the relationship;
  1. It is not a simple exercise to mount such an argument. Your lawyer will need to spend time obtaining detailed instructions from the abused person regarding the violence and how it impacted on their ability to make contributions;
  1. The instructions provided to the lawyer will be put in the form of an Affidavit. If the case proceeds to Trial, the abused person will be cross-examined on the contents of their Affidavit. This may make the victims of an abusive relationship to feel further 'victimised' by the Family Court system; and so it is really important that the process is coupled with appropriate support and protection.

Thanks to Malcom, such support and protection should hopefully be more readily available and helpful now. Also, a big shout out must go to all of the counsellors, police and other helpers everywhere who have been doing what they can to tackle the issue to date too – thank you. #highfivesnotlowblows #dvisunaustralian

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Thursday, 21 March 2019