‘Did I agree to that?’ The effect of family violence on negating consent in family law property settlements
The Australian family law system encourages people to reach agreement on their end-of-relationship property settlements without the need for a full court hearing. This is most often achieved in the form of ‘consent orders’ where an agreement on how the property will be share is reached privately between the parties but then formally filed and made enforceable as orders of the court. However, where there has been domestic violence, the court may later find that the consent of one party was not given freely and without coercion. These circumstances may be held to have negated the consent—that is, that there was no true consent at all.
There have been a number of cases where consent has been negatived due to domestic violence.
In the case of Keating & Keating [2019] FamCAFC 46, the Full Court of the Family Court of Australia considered whether the wife’s consent to a property settlement agreement was negated by the husband’s family violence towards her. The husband had been physically and emotionally abusive towards the wife during their marriage, and the abuse continued during the negotiation of the property settlement. Despite this, the wife agreed to a settlement that gave her only a small portion of the marital assets. The court found that the husband’s conduct had a profound effect on the wife’s ability to negotiate and that the settlement was not just and equitable in the circumstances. The court held that the wife’s consent was vitiated by the husband’s family violence and that the settlement should be set aside.
The court noted that family violence is a relevant consideration in determining the just and equitable division of property. The court also emphasized the need to ensure that parties are able to negotiate freely and without duress, and that any agreement reached is fair and equitable in the circumstances.
Similarly, in the case of Lucas & Lucas [2018] FCCA 3623, the Federal Circuit Court found that the husband’s domestic violence towards his wife had impacted her decision-making abilities and negated her consent to a property settlement agreement. The court varied the agreement to more fairly reflect her contributions.
In each of these cases, the court found that the presence of domestic violence had negated the parties’ consent to a previous agreement or order and took steps to protect the welfare of any children involved and to adjust any property settlements to more fairly reflect each party’s contributions. There is no set rule or formula for determining whether consent to a property settlement agreement was negatived by family violence, and the onus is on the victim-survivor to prove that this is what has occurred. The bar, thus set, is quite high. In policy terms, the court would prefer its final orders to stay just that—final. Notwithstanding this, it is recognised that the exercise of coercion in the making of agreements is well within the hallmark of an abusive relationship. On a later application, then, the court would then consider all relevant circumstances surrounding the making of the agreement, including the nature and extent of the domestic violence, the impact of the violence on the victim’s ability to negotiate, and the overall fairness and equity of the settlement.
It is vital to seek legal advice if you have experienced domestic violence and are considering negotiating a consent order or agreement in a family law matter. It is also important to be sure of your grounds, and to understand the risks involved, before seeking to overturn a property settlement. Reach out to Tribe Family Lawyers for a free Case Evaluation to discuss the terms, and the circumstances, of your property settlement.