In determining the distribution of marital assets in a property settlement and /or the granting of spousal maintenance the court is not required to consider 'fault' or 'marital conduct' as relevant factors. However, the court is required to consider any fact or circumstance which, in the opinion of the court, the justice of the case requires that it take into account as long as it is of a broadly financial nature.
Generally, financial losses which have been incurred by the parties or either of them in the course of the marriage will be shared by them (although not necessarily equally). There are two exceptions to this general principle. Firstly, where one party has embarked on a course of conduct designed to reduce or minimise the effective value or worth of the matrimonial assets (including such conduct as deliberately destroying a valuable asset, the wasteful dissipation of assets by a party, or even deliberately or recklessly scaring away investors in the family business thus reducing the effective value of its worth). Secondly, where one party has acted recklessly, negligently or wantonly with matrimonial assets, the overall effect of which has reduced or minimised their value, for example, excessive gambling, spending excessive sums on drugs, alcohol or the downloading of internet pornography.
There is an increasing awareness of domestic violence as an issue in society and with this societal awareness has come recognition by the court. If, for example, a wife has been subjected to constant physical and emotional abuse by the husband to the extent that she is unable to fulfil her employment or has to change careers from a highly paid position (modelling) to a lower paid one (cleaning) as a direct result of the husband's abuse, the conduct can be taken into account by the court as having direct financial consequences. Such a set of circumstances takes into account the financial losses caused during the marriage by the conduct of the husband on the wife as well as possibly creating a higher future needs consideration, particularly as it affects future earning capacity. But the effects of violence are generally more subtle and it may not be that there is an obvious change from modelling to cleaning.
The court will consider the wife's potential to contribute had she not been the subject of abuse. Another example may be where one party's considered contribution as homemaker and parent may be increased where that party has endured domestic violence at the instigation of the other party. The court is required to assess the contribution that each spouse has made to the property over the period of the marriage. A course of violent conduct by one party towards another which makes the other party's contribution more arduous is a fact a trial judge is entitled to take into account. The application of that principle is not limited to domestic violence but can extend to other forms of conduct such as bad business deals, gambling and wasteful destruction of assets. Certain conduct may even be classified as resulting in a negative financial contributions.
Violence in the home is, of itself, an indication of a negative contribution to the welfare of the family and is therefore relevant in the determination of how to adjust property interests following the breakdown of a marriage. The effect of marital conduct in property settlement proceedings can get extremely technical.
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