Type:	Journal Article
Title:	Matrimonial property reform: legalising for he 'financial consequences' of domestic violence
Other Titles:	Australian journal of family law
Authors:	Middleton, Sarah
Keywords:	Family law;Legal issues;Legislation analysis
Year:	2005
Publisher:	Butterworths
Citation:	19, 2005
Notes:	This article argues for law reform in the area of matrimonial property proceedings and domestic violence. It suggests abandoning the ‘Kennon:approach’, which looks to the impact of domestic violence on a victim’s contribution to the welfare of the family, since it has not achieved better outcomes for victims. It explains that future direction of change should be on the financial consequences of domestic violence, through an amendment to the Family Law Act:property provisions. It argues that domestic violence, in the contribution context, should be relevant as a defence by a victim to claims that she has made less contribution than would be expected. The perpetrator should not be able to gain any financial benefit by relying on the victim’s reduced physical or emotional capacity to contribute, as they should not profit from their own wrongdoing. Problems of quantification could also be minimised, as the violence defence would bring a victim’s contribution back to what it would otherwise have been, but for the violence. Part 1 of this article outlines the manner in which to take the consequences of domestic violence into account in order to improve property outcomes for victims. Part 2 discusses the reasons for a legislative reform of the relevance of domestic violence to the Section 75(2) factors. This should not involve any change to the contribution provisions of Section 79(4) to set out the decreased relevance of domestic violence. Instead, changes to the Kennon:approach should be dealt with in the explanatory memorandum to the Section 75(2) amendment. Part 3 goes to the policy reasons for identifying domestic violence from marital conduct generally for inclusion in the Section 75(2) considerations. Part 4 looks at issues of nomenclature and definition with regard to any amendment of Section 75(2) to include domestic violence as a relevant factor. Part 5 considers how to draft such a new paragraph in the legislation. It concludes that this ‘financial consequences’ approach could help to redress the correlation that exists between women’s experience of domestic violence and post-separation poverty.
URI:	https://anrows.intersearch.com.au/anrowsjspui/handle/1/15764
ISSN:	0817623X
Appears in Collections:	Journal Articles

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