FAMILY VIOLENCE AND CONTRIBUTIONS IN FAMILY LAW MATTERS
At present, it is not easy to successfully argue in the Family Court that the family violence in your relationship or marriage made your contributions more difficult, or onerous and therefore you ought to be entitled to a greater adjustment of the asset pool or monies available. Having said that however, the Court does have a duty to make decisions that are just and equitable when distributing joint assets between separating people.
The recent case of Belmore & Belmore (2017) looked at whether the impact of Family Violence affects contributions during marriage.
This was a case that involved a couple who had been married for 31 years and had 6 children ranging in ages from 26 to 13 years. In 2010 the husband violently sexually assaulted the wife and was convicted to 2 and half years in prison. Whilst the husband was in prison, the wife and 3 of the children visited him in jail. The husband was released from prison in August 2012 and on 27 February 2013 the parties were divorced.
The wife sought property Orders and she sought that because of the family violence she endured in the marriage, she ought to receive an adjustment in her favour. The total assets between the parties was just under $1Million.
The wife claimed that the husband was violent before the 2010 incident and said that the abuse had significantly affected her mental health and also the behaviour of the children.
The Mother relied on the Kennon v Kennon case which states that violence during a marriage can have an effect on the other parties contribution and should be considered by a judge when looking at the contributions of the parties and how the judge orders to divide the assets.
Unfortunately for the wife, the presiding judge did not accept the wife’s evidence in relation to the family violence, nor did the judge accept that whilst the husband was in jail that she should receive any additional contributions for family violence.
Although the presiding Judge did agree that the wife’s contributions from 2010 were greater than the husband. The wife was solely financially responsible for the home and the children and has been ever since. The judge reasoned that because the husband was in prison and unable to contribute the wife has contributed 8% more than the husband during the marriage, therefore she ought to receive 58% and he would receive 42%.
This however did not end the matter, because the Judge could see that the wife will have the sole care of the children, as well as what would appear to be the entire financial burden of providing for them over still quite some years until adulthood, , it was decided that she receive 65% of the assets and the husband receive 35%.
The information provided here is not legal advice, for specialised legal advice on Family Violence and contributions in family law matters, please contact us on 8999 1800 or info@cominoslawyers.com.au