The recent Family Law Amendment Act brings important changes to how courts handle property settlements after separation, including by requiring consideration of family violence in property division at the end of a marriage or de facto relationship.

What happens in property settlements?

When separating, the property of the relationship - including superannuation and financial resources -maybe divided between the couple after a marriage or de facto relationship ends. This framework is codified in the Family Law Act and its application can result in one party being declared an owner of an assert or assets over the other, require property to ‘change hands’ by being transferred, for superannuation entitlements to be shared or for debts to be repaid. It can also require the sale of assets. You can read more about that legal framework here.

What is spouse maintenance?

Spouse maintenance is a payment, or series of payments, made by one party of a marriage or de facto couple to the other after separation or divorce.

Spouse maintenance is paid where a party is eligible (due to caregiving responsibilities for a child of the relationship, or their ability to work in paid employment is limited due to ill-health) as they are unable to meet their reasonably adequate living costs themselves, and their former spouse has the financial capacity to financially contribute to their living costs.

The key principle and objective in both property division and in the provision of spouse maintenance is to achieve a just and equitable outcomes for both parties in how the property, income and financial resources of a relationship are dealt with after a break-up. 

The circumstances of the parties and their relationship, together with an assessment of the contributions to the asset pool and the current and future circumstances of each party are required to be considered. 

How does family violence fit in?

The amendments to the Family Law Act now expand the definition of family violence to identify specific forms of economic and financial abuse conduct, such as dowry abuse. This expansion of the definition provides clarity that enhances community understanding about the kind of conduct that is family violence.

The codified legal framework within the Act for deciding property division and spousal maintenance cases now includes considering the effect of any family violence when assessing contributions made by each party to the relationship and asset pool, as well as the current and future circumstances of the parties. 

This means if one party has been subjected or exposed to family violence by the other, how that family violence affected the victims' ability to contribute financially or non-financially during the relationship, is analysed. 

For example, domestic abuse or controlling conduct which might have limited a person’s ability to undertake paid work, build savings, or pursue other activities deriving an income may be relevant to consider and change how contributions would otherwise be assessed. 

Why is this important?

Recognising the prevalence of family violence in our society and its economic flow-on effect these reforms are a crucial step towards our law aiming to better account for the true impact of family violence in property settlements and spousal maintenance cases, including where it has affected individuals, the wealth and welfare of the family. 

For separating couples and legal practitioners, it means:

• Victims of family violence may feel enhanced understanding and validation of their lived experiences, through these reforms which seeks to codify case law principles into the legislation
• The effect of family violence will be carefully considered in property disputes. If the family violence is not admitted to, it may require competing evidence to be tested by a Court to establish whether it occurred and its effect upon the victim in the past and any ongoing effect for them.
• Courts are empowered to make decisions that assess the economic impacts of family violence, where the evidence supports it doing so. The

If you’re going through a separation and need to navigate a property settlement or spouse maintenance, Parker Coles Curtis can help you understand these changes and how they may apply to you. Our team is trauma-informed and highly experienced in handling matters of sensitivity with dignity, care and courage. Let us help steer you to a just and equitable conclusion, so you can start a fresh chapter.