Insights and inspiration
Introducing Fault in Marital Property Law
16 October 2014
Since the introduction of the no-fault principle to divorces in Australia, some people have been left feeling that there should be ramifications for the misbehaviour of spouses during the course of their marriage, if not in grounds for divorce then in other ways.
The Kennon decision in 1997 introduced the role of conduct in marital property law settlements. This decision signalled a change in direction by the Full Family Court, which moved away from the no-fault principle where judges were discouraged from investigating the conduct of the spouses in order to ascertain a property settlement. Instead this decision permitted property entitlements to be adjusted in situations where the conduct by one spouse has had 'significant adverse impact' upon the other spouse's contributions. In this decision the Court determined that the Husband's repeated violent conduct towards his Wife made contributions significantly more arduous for her.
Since the Kennon decision, there have been few cases that have been successful in applying these principles, which suggests a need for greater clarity in this area.
However, in the recent Devon decision, the Kennon case was applied. In this case, the Wife was constantly subject to verbal and physical abuse and a series of significant assults during the duration of the parties' lengthy marriage. The Court asserted that this was clearly a case where the contributions of the Wife were made onerous by the violence of the Husband. Therefore, the conduct of the Husband was taken into account when determining the contributions of the parties during the marriage. This resulted in the Wife receiving an extra 5% loading for her contributions during the marriage, as her ability to make contributions was significantly impaired due to the violence she suffered.
These cases demonstrate a willingness by the courts to impose a kind of penalty in situations where the abusive conduct of a spouse has made the other spouse's job much harder; suffering the effects of family violence while still doing what is needed.
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