Can domestic violence impact a property settlement?

15 Jul Can domestic violence impact a property settlement?

Article summary: Domestic violence is a deeply serious offence. If it’s found to be involved in a divorce case, it’s likely to have far-reaching consequences across a range of matters. The Court will consider it when determining child custody, spousal maintenance and property settlement. In this article, the Toomey Family Law team explains how domestic violence can impact property settlement.

In this article:

1. Why domestic violence matters in family law?
2. What is considered domestic and family violence?
3. How can domestic violence impact a property settlement?
4. Proving economic harm from family violence
5. Domestic violence and property settlement: Kennon case study
6. How Toomey Family Law can help
7. Where to seek support

Australia famously operates on a no-fault divorce system. That means that Australia’s family law system doesn’t assign blame or punish a spouse for causing a marriage to end. But family violence can still have a significant impact on what happens after separation, particularly when it comes to property settlements.

Domestic violence is taken very seriously by the Court. And even though it’s not concerned with blaming anyone for a failed relationship, it is still concerned with making sure that legal outcomes are fair and that the effects of domestic violence are properly recognised where necessary.

So, how does domestic violence influence the division of property after separation?

Domestic violence matters in family law

Family and domestic violence is a significant concern in Australia and in our family law system. And there’s a good reason for this. According to government research, one in four women and one in 14 men in 2021–22 had experienced violence from an intimate partner.

Additionally, 23% of women and 14% of men had experienced emotional abuse and 16% of women and nearly 8% of men had experienced economic abuse from a current or previous partner. These statistics are only growing. In 2023-24 there was a 35% increase in the number of women killed by intimate partners, following a 31% increase in the previous year.

In Queensland, domestic and family violence is regulated by The Family Law Act 1975 and the Domestic and Family Violence Protection (Combating Coercive Control) and Other Legislation Amendment Act 2023, the Domestic and Family Violence Protection Act 2012 and the Criminal Code Act 1989.

These pieces of legislation and the way the court interprets them have given us a broad definition of what domestic and family violence can cover, including:

• Physical abuse
• Threats
• Coercive control
• Psychological abuse
• Emotional abuse
• Sexual abuse
• Economic or financial abuse
• Social abuse
• Spiritual abuse
• Intentional property damage
• Technology facilitated violence (illegally surveilling someone or accessing information about them via tech

How can domestic violence impact a property settlement?

Since 2025 (and following amendments to the Family Law Act), the family court is required to consider the economic effects of domestic and family violence when determining a property settlement. And since domestic violence can impact between 23 and 61% of divorces and separations in Australia, it’s something any divorcing couple should be aware of.

The change recognises an important reality: violence within a relationship can have consequences that extend well beyond a person’s immediate safety and wellbeing. In many cases, it can also affect their financial position, earning capacity and ability to contribute to the relationship over time.

Importantly, the existence of family violence does not automatically result in a larger property settlement for the other person. The Court will examine the specific circumstances of the relationship and whether the violence had a measurable impact on contributions made during the relationship or on a person’s future needs following separation.

When thinking about the economic impact of violence, the court will look at whether:

• The violence affected one party’s ability to make financial and non-financial contributions. For example, their partner didn’t allow them to work, or the abuse reduced their ability to work.
• The violence affected one party’s physical, emotional or psychological health and thereby increased their future needs. For example, they have ongoing counselling costs.

The Court may also consider situations involving financial abuse. This can include controlling access to bank accounts, restricting spending, preventing a partner from working, forcing them to take on debt or otherwise limiting their financial independence.

Proving economic harm from family violence

Of course, proving that a person has suffered economic harm because of violence from their former partner isn’t always an easy thing to establish in court. You will generally need to establish:

• Incidents of domestic or family violence
• A reduced ability to make financial or non-financial contributions, or increased financial needs
• A connection between domestic violence and financial consequences

A real-life scenario might be where a person suffered from long-term emotional and physical abuse and had ongoing psychological injuries as a result that affected their earning capacity after separation. As long as they can demonstrate this in court, the court will consider these impacts when deciding on a property settlement.

Evidence might include medical records, counselling reports, employment records, financial documents, witness statements or family violence orders, depending on the circumstances.

An expert family lawyer can certainly help with this process. We can help identify the evidence that might be relevant in your situation, explain how the Court is likely to assess your claim and make sure your case is presented as effectively as possible. Every matter is different, so obtaining legal advice early can make it easier to pursue a fair property settlement outcome.

Domestic violence and property settlement: Kennon case study

The Family Court of Australia case of Kennon v Kennon [1997] was significant for demonstrating the link between domestic violence and property settlement.

In this case, the Full Court found that the physical violence perpetrated by the husband against the wife should be considered when determining the division of the shared asset pool. The physical abuse and fear suffered by the wife during the relationship were believed to affect her mental health. The wife’s entitlements were subsequently adjusted in her favour at settlement.

How Toomey Family Law can help

If domestic or family violence is a factor in your divorce, and you believe it affected your ability to make contributions or has increased your future needs, you may want to seek additional entitlements during your settlement.

Get in touch with our team as soon as possible. We can help provide specialised insight into the legal process as well as help guide and support you with empathy and kindness when domestic and family violence has been part of the relationship.

If you’re looking for a team with extensive experience guiding clients through divorce and property settlement, then reach out to Toomey Family Law today.

Where to seek support

If you’re in immediate danger, call 000.

For additional support, you can reach out to:

• 1800RESPECT
• FVREE
• Leaving Violence Program
• Full Stop Australia
• DVConnect
• 13YARN
• Queensland Government
• Services Australia
• Women’s Legal Service Qld
• Legal Aid Queensland
• Toomey Family Law

If you’d like to learn more about how domestic violence matters could impact your property settlement, contact our team today. Toomey Family Law is here to support you on your journey.