When determining the overall percentage division in a property settlement, the court will take into consideration a number of factors. These factors can include contributions, the length of the relationship, the care of any children and future needs.
The full court in the case of Kennon & Kennon established that if a there has been domestic violence during a relationship which makes it significantly more arduous for a party to make a contribution to the relationship, then the court can take that into account when considering the parties’ contributions.
For the court to be satisfied that a “Kennon” adjustment should be made, the court will require evidence supporting that the domestic violence perpetrated did impact the contributions of the other party. A party should not expect a “Kennon” adjustment to be made by the court because the relationship was one in which domestic violence was present.
The cases that fall within the ambit of the “Kennon” adjustment are exceptional cases.
An example of this is a Family Court case where the court was not minded to make an adjustment in a marriage of 42 years, even though the court accepted that the wife had been subjected to controlling and coercive behaviour, denigration and even physical assault from the husband. This was, as in her evidence before the court, despite the behaviour of the husband she had performed her role within the marriage freely and without inhibition. Without evidence of the domestic violence impeding the wife’s functioning and contributions during the marriage the court found that the domestic violence was not a factor that would increase the wife’s property settlement entitlement.
In comparison, in a case where the parties had a short marriage of 19 months and the wife suffered from post-traumatic stress disorder after five incidents of domestic violence (of which the husband was charged and convicted for) the wife received an adjustment for the Kennon considerations.
The take away is to remember that the court relies on evidence; a mere assertion is not sufficient when there is a dispute. If you’re seeking an adjustment for Kennon, the affidavit should plead where possible all incidents of domestic violence and then how those incidents significantly impacted the party’s contribution.
