It’s a worldwide hit, a gripping page-turner and now a blockbuster movie: The Girl on the Train by Paula Hawkins. Favoured by commuters and book clubs globally, it’s a murder mystery narrated by tragic, alcoholic anti-heroine Rachel. A twisting tale with multiple layers, The Girl on the Train raises lots of interesting questions – particularly for us family lawyer types.
The audience’s introduction to lead narrator Rachel is an uncomfortable one; we observe her staring with desperate longing at her former matrimonial home, which she travels past on her daily train commute. We learn that Rachel and her now ex-husband (let’s call him The Cheater) had purchased the house together in happier times.
But now The Cheater is sitting pretty in their home with his brand-new family whilst poor Rachel is reduced to renting a room off a well-meaning, moralising, long-suffering friend. Exactly what happened during Rachel and The Cheater’s ill-fated marriage is the second layer of mystery in the story. We wonder to ourselves – was there family violence in their relationship? And if there was – who was the perpetrator of the violence? It becomes clear that Rachel is a barely functioning alcoholic who can’t hold down a job – so she’s not exactly a trustworthy narrator at the best of times.
Yet even this fact – her alcoholism – raises questions, the biggest one being: was her alcoholism caused by family violence? Watching the movie, I couldn’t help but play the “what if” game. What if Rachel and The Cheater lived in Australia? Upon separation there would be a property settlement to work out.
Which issues affecting the relationship of Rachel and The Cheater would be relevant in a court’s decision about who ends up with what? These are several of the questions Australian courts would consider in their decision.
Did family violence occur during the relationship?
This question would be answered in court by both Rachel and The Cheater giving evidence. The judge would decide whom he/she believes. This is the judge ‘making findings of fact’.
How would Rachel’s emotional and psychological issues be considered?
The Rachel we observe is a damaged soul with significant emotional and psychological issues. If this case ended up in court, Rachel would need to supply expert evidence from a psychologist or psychiatrist to back up her claims of abuse. This evidence would need to demonstrate her incapacity for employment, and the effects of any family violence on her health. And yes, the judge would make findings of fact about family violence, too.
Is family violence relevant in their property settlement?
Assuming the judge found that family violence had occurred, the answer to this question is far from straight forward. In fact, it’s currently a hot topic of debate amongst family lawyers. In the vast majority of cases that progress to a court trial, findings that family violence occurred have not had a large impact on the outcome of the court’s decision. [A case involving such a settlement can be found In the Marriage of Kennon (1997) FLC 92-757 ]
That said, the position that many specialist family lawyers are arguing in favour of suggests that victims of family violence should be treated like victims of personal injury. This means victims of family violence should be awarded ‘damages’ or ‘compensation’ in a property settlement, not just given a slightly bigger piece of the pie when the matrimonial pool of assets is being divided.
What’s the relevance of Rachel’s alcoholism?
When deciding how to divide parties’ assets, the court must give consideration to what is known as “Section 75(2) factors”. In a nutshell, this means the court would consider the employability of both parties and their ongoing ability to support themselves. Although likely to make the judge feel sympathy towards her, whether Rach’s alcoholism was the result of family violence is largely irrelevant.
It’s important to note that alcoholism is generally treated as an illness, and illness is on the Section 75(2) list of factors to be considered by the court. This means Rachel would likely receive a slightly bigger piece of the matrimonial assets pie.
Which brings us back to our starting question: how likely is it that The Cheater would have ended up with everything and Rachel a big fat nothing?
In short – it’s not very likely at all. But then that probably wouldn’t have made for much of a blockbuster.
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