Generally, the conduct of the parties or the cause of the relationship breakdown is not a relevant factor to the determination of the appropriate division of the property pool. However, in cases involving serious family violence the Court may allocate an abused party a greater percentage of the property pool. This is known as a Kennon Adjustment.
The 1997 case of Kennon & Kennon established the circumstances in which family violence could influence the outcome of a property principle. Here, the Court held that:
“Where there is a course of violent conduct by one party towards the other during the marriage which is demonstrated to have had a significant adverse impact upon that party’s contributions to the marriage, or, put the other way, to have made his or her contributions significantly more arduous than they ought to have been, that is a fact which a trial judge is entitled to take into account in assessing the parties’ respective contributions…
…[However it] is essential to bear in mind the relatively narrow band of cases to which these considerations apply. To be relevant, it would be necessary to show that the conduct occurred during the course of the marriage and had a discernible impact upon the contributions of the other party. It is not directed to conduct which does not have that effect and of necessity it does not encompass (as in Ferguson) conduct related to the breakdown of the marriage (basically because it would not have had a sufficient duration for this impact to be relevant to contributions).”
When Will the Court Make a Kennon Adjustment?
A Kennon Adjustment will only be made if you can demonstrate that there has been a course of family violence which has made your contributions to the marriage significantly more arduous.
To successfully claim a Kennon Adjustment, you must produce evidence that:
- Establishes the incidence of Family Violence;
- Identifies the effect of the Family Violence; and
- Enables the Court to quantify the effect of that violence on your capacity to contribute, that is, demonstrates a nexus between the conduct and your capacity to make contributions.
Generally, it is wise to call medical and/or other expert evidence as to the impact of the violence; however, it is not necessarily required depending on the case.
It must be noted that a Kennon Adjustment will only be made in exceptional cases. One off incidents of family violence or family violence which only occurred in the context of the marriage breakdown will not be sufficient to establish a Kennon Adjustment.
DISCLAIMER: The information provided above is published for general informational purposes only and is not intended to be nor should it be relied upon as a substitute for legal or other advice.