What is a Kennon Claim?
A Kennon claim occurs where a party seeks an adjustment to property settlement in their favour, where their contributions to the asset pool during the relationship were substantially hindered by family violence inflicted upon them.
It has been noted in later decisions such as Kosorvski v Kosorvski that a Kennon claim is not a means of compensation, punishment or deterrence. Rather, it is ‘symbolic recognition of the extraordinary efforts of one spouse in persisting with contribution in the face of enormous and unjustified adversity’.
Kennon & Kennon
This case involved the wife seeking common law damages arising from the assaults occurring during the party’s five-year relationship, in addition to the property settlement.
Whilst the trial judge held that family violence during marriage could be accounted for when assessing the parties’ respective contributions pursuant to s79 Family Law Act, he held the family violence had not affected her contributions during the marriage to the extent she had already been compensated from the damages received for assaults she had particularised.
On appeal, the majority of the Full Court found that family violence ought to be taken into account as an issue of contribution for the purposes of s79, rather than by way of common law damages.
Specifically, the Court laid out the elements for such a claim.
The effect of the decision was to lower some of the evidentiary barriers to obtain favorable property settlements where a party is significantly impacted by family violence. The outcome of the judgement was that the wife was entitled to a further $300,000 increase to her property settlement.
Elements
If a party is to rely on a Kennon claim, evidence must be adduced to:
- Establish a violent course of conduct by the other party;
- Establish the violent conduct had a discernable impact on the victim; and
- Establish the victim’s contributions to the relationship were made substantially arduous as a result of the violent conduct, in a way which is quantifiable by the Courts.
Average Adjustment for Successful Claims
The Australian Journal of Family Law revealed the average adjustment for a successful Kennon claim was 7.3%, with the general range being between 5-15%.
These successful cases typically involved claims of physical, verbal and sexual abuse and/or controlling, intimidating and oppressive behavior.
Recent Outcomes
Benson & Drury [2020] FamCAFC
This case concerned parties ending an eleven-year de-facto relationship with two teenage children. The net-asset pool amounted to $2,000,000, and both parties agreed their contributions were equal, with the exception of unequal contribution to the purchase price of their home.
The wife relied on Kennon, and the trial judge awarded a 5% adjustment in her favor. On Appeal, the Full Court held that the correct interpretation of the elements involves assessing which contributions were made more arduous against other contributions. This can involve assessment of direct, indirect, financial or non-financial contributions.
Baranski v Baranski (2012) 259 FLR 122
The Full Court extended the previous requirement that the family violence must have occurred during the marriage, to include post-separation family violence.
Stephens v Stephens (2005) FamCA 905
The Court held that the phrase “course of conduct” is broad, and does not necessarily have to be frequent to constitute a course of conduct, though a degree of repetition will be required. In this case, verbal abuse once every six months over the course of a 16-year relationship was sufficient.
If you would like to learn more about Kennon claims or think they might be relevant to your circumstances, please do not hesitate to contact our solicitors on (02) 8917 8700.