In a recent case of Gadhavi & Gadhavi, the court deliberated on an appeal concerning the division of marital assets, which involved the application of the Kennon v Kennon principle. The Kennon v Kennon principle, in essence, states that if one spouse's violence makes the other spouse's contributions more challenging, those contributions can be given more weight during property division.
Key facts:
Mr. and Ms. Gadhavi married in 1998 and separated in 2018 after 20 years, having two children.
The marital property was worth $24,230,275.
The husband entered the marriage with assets valued at $2,716,236, while the wife had assets worth around $375,000.
The husband was notably involved in family violence, behaving coercively and violently towards his wife.
Over the years, the husband transitioned from a finance career to a stay-at-home parent, whereas the wife, a medical professional, managed work, caregiving, and further education.
Initial Decision
The main contention was how contributions were assessed, especially considering the husband's violent behavior, making the wife's contributions harder as per the Kennon principle.
The primary judge assigned 55% of assets to the wife and 45% to the husband, factoring the increased difficulty the wife faced in her contributions due to the husband's coercive and violent behavior. However, questions emerged on appeal regarding the division favouring the wife, considering the husband's substantial initial contribution.
Appeal
The appeal court noted that the parties’ contributions needed to be looked at in the context of the complete range of contributions made by both parties. As stated by the Full Court in the case of Benson & Drury [2020], it is critical to consider contributions that were made challenging alongside all other contributions from both parties.
These can be financial or non-financial, directly or indirectly related to acquiring, conserving, and improving property, or in their roles as homemakers and parents. Honourable Deputy Chief Justice McClelland and Justices Tree & Hartnett thus reaffirmed the proposition that it would be a mistake to isolate or compartmentalise different types of contributions. There was, therefore, no need to identify a certain percentage adjustment with respect to the Kennon principle, which the trial judge correctly had done.
The Full Court further stated at paragraph 47: “That is, it is clear that, in weighing various contributions made by each party, the trial judge was not required to quantify those contributions in mathematical or percentage terms. However, on the facts of this particular case, the primary judge was required to explain why the husband’s substantial initial contribution was subsumed by the wife’s contributions such that it was not only wholly negated, but that her contribution-based entitlement exceeded his by a differential of 20 per cent.”
It was then held on appeal that the primary judge didn't adequately address or explain the husband's sizable initial financial contribution compared to the wife's subsequent efforts. They found it challenging to justify a 60/40 split favoring the wife, leading to a difference of $4,846,055, given the husband's initial input.
Ultimately, due to these discrepancies and unclear reasoning from the primary judge, the Appellate Court upheld the appeal, nullifying the initial orders and ordered a re-hearing of the matter with a new judge.
In summary, it remains clear that in the cases involving serious family violence, the court has extensive discretion in determining the adjustment to be granted to victims. The process of accurately isolating and quantifying such adjustments poses significant challenges, primarily because contributions are evaluated holistically and not in isolation. This underscores the complexities inherent in cases involving family violence and the broad scope of judgment left to the courts.