Now, following significant changes to the Family Law Act 1975, effective from 10 June 2025, family violence is a relevant consideration in all property settlement matters.
These amendments are intended to recognise that victims of family violence struggle to achieve a fair division of property and may suffer long term financial disadvantage which should be recognised in assessing a just and equitable property settlement.
A summary of the changes to the Family Law Act 1975 as at 10 June 2025, are set out below:
Express recognition of economic or financial abuse as family violence
Family Violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family or causes the family member to be fearful.
The Family Law Act 1975 now expressly recognises economic or financial abuse as family violence (s4AB(2)).
Economic or financial abuse as defined under s4AB(2A) includes:
- Unreasonably denying financial autonomy for example controlling money/assets, sabotaging employment or income, forcing a family member to take on a liability, accumulating debt without consent;
- Unreasonably denying financial support to meet the living expenses of a family member or their child.
- Dowry abuse – coercing a family member to give money assets or other items as dowry or do things in connection with a practice of dowry or hiding or denying things done or agreed in connection with a practice of dowry.
Consideration of the impact of family violence on a party’s ability to make financial and non-financial contributions
Previously, family violence was considered relevant in a property settlement in only a narrow band of cases in determining the contributions of a party who was a victim of that violence.
The threshold for family violence being relevant in a property settlement as set out in the case of Kennon, was that the victim was required to show that there was a course of violent conduct by one party towards the other during the relationship which had a significant adverse impact upon the victim’s contributions or that it made their contributions more arduous.
In the case of Baranski & Baranski & Anor [2012] FamCAFC 18, the Court held that family violence post separation is also relevant and may have the impact of increasing the contributions on behalf of the victim. In this case, the perpetrator’s conduct resulted in the couple’s children not spending time with the perpetrator causing an obvious increase in the parenting contributions made by the victim parent.
Now, following significant amendments to the Family Law Act 1975, under s79(4)(ca) and s90SM(4)(ca), family violence is a relevant consideration and a standalone factor in assessing the contributions of the parties.
This means that family violence is a relevant consideration and must be expressly considered by the Court, with respect to a party’s ability to make financial and non-financial contributions to the property pool during the relationship.
Examples where family violence may be relevant in a property settlement are:
- A party was not allowed to work and earn an income;
- A party was physically, verbally or emotionally abused;
- A party was not allowed to leave the house;
- A party was not permitted to contact their family;
- A party was told what to wear and where they were allowed to go;
- A party received death threats or threats of harm to their children or their family.
The amendments are expressed by the legislature, to codify the existing case law in Kennon & Kennon, rather than as being a change to the current case law. The intention being that the Kennon principles are applied for clearly and consistently in future matters.
This means that the Court will still be required to consider whether or not the violent course of conduct by one party towards the other party made the other party’s contributions more arduous.
Just because family violence is a relevant consideration does not mean it will be relevant in all property settlement matters, when assessing a party’s contributions to the property pool and to the welfare of the family.
Importantly, the existence of family violence will not automatically entitle one party to an adjustment in their favour. Rather, the Court must assess the impact and effects of the family violence on the victim’s ability to contribute.
We await with bated breath as to how the codification of these principles’ changes (if at all) the way the Courts determine property settlement cases where there has been family violence which has made a party’s contributions harder.
New and Amended Factors – wastage, liabilities, housing needs of children
The amendments to the Family Law Act 1975 include new/amended factors to be considered by the Court when assessing a party’s current and future needs, in order to determine a property settlement, including as follows:
- Wastage – the effect of any material wastage caused intentionally or recklessly by a party of property or financial resources of either of the parties to the relationship or both of them. This could include one party’s excessive gambling. The intention is that the Court could consider wastage as a factor where it would be unjust for any detriment or diminution to be shared equally by both parties (s79(5)(d) and s90SM(5)(d)).
- Liabilities – liabilities incurred by either of the parties to the relationship or both of them including the nature of liabilities and the circumstances relating to them. This could include for example an unsecured loan, a gambling debt or a taxation liability. Including this factor allows the court to undertake a detailed questioning of who obtained the liabilities, when they were obtained and whether both parties consented to them, which will assist the court in determining whether to include those liabilities in the substantive pool, or whether given the circumstances in which those liabilities were incurred, they should be considered separately (S79(5)(e) and s90SM(5)(e)).
- The housing needs of children – the extent to which either party to the relationship has the care of a child of the relationship who is under 18 including the need of either party to provide appropriate housing for such a child (s79(5)(f) and s90SM(5)(f)). Additionally, the Court will be required to give consideration to appropriate housing for children in relation to spousal maintenance decisions (s75(2)(c) and s90SF(3)(c)).
Family violence is a relevant consideration on a party’s current and future needs
Family violence is a relevant consideration in terms of the impact which the family violence has, or could have, on the current and future needs of a party (s79(5) and s90SM(5)).
For example, if a party’s mental health and ability to obtain paid employment is impacted due to the family violence they have experienced.
It is quite common for victim survivors to experience mental health issues following exposure to coercive and controlling family violence, such as severe anxiety, depression, panic attacks and PTSD.
The Court may also take family violence into account in an application for spousal maintenance (s75(2)(aa) and 90SF(3)(aa).
The amendments allow the economic impact of family violence on the current and future wealth and welfare of families to be expressly considered in property settlements, where relevant.
Questions about how and when family violence is relevant in property settlements?
If you are unsure as to whether family violence is relevant in your property settlement matter, contact us and book an initial consultation with one of our experienced family lawyers to discuss your individual circumstances.
