Although some couples can recover from cheating, others may feel that separation or divorce is their only option.
In this case, the aggrieved party may wonder about the relevance of their partner’s infidelity on the division of their relationship property. But does the law provide for this?
Family Law Act 1975
In 1975 Australia introduced ‘no-fault’ divorce. This lets couples request a divorce without proving infidelity or abuse, as was the case before the law changed.
The previous law saw marriage as a contract, and if one party broke that contract by behaving inappropriately, the aggrieved party could ask for the contract to be ended. The offending party may have been punished in some way, for example, when dividing the assets.
But the Family Law Act only requires proof that the relationship has irretrievably broken down and accepts the couple living separately and apart for at least 12 months as proof of that breakdown.
Does the Law Punish Cheating or Infidelity in Australia?
The law no longer punishes the offending party.
Whether one or both parties have participated in extra-marital affairs, is irrelevant to getting divorced.
Property Settlements
For both married couples and de facto couples, the court will order a property settlement which is just and equitable based on:
- The net value of all the couple’s assets and liabilities.
- Their respective financial contributions to the marriage, including the application of any lump sums they received, like inheritances, to the acquisition of their relationship property.
- Their respective non-financial contributions, for example if one stayed home to raise the children.
- The roles the parties have performed in running their household, and parenting their child(ren).
- The present situation of each member of the couple, including their age, health and ability to earn a living.
The fact that one party had been unfaithful during a marriage or de facto relationship can be relevant to these considerations in 2 possible ways:
1. Pre Separation Considerations
Firstly, when assessing the parties’ contributions to the acquisition, conservation and improvement of their wealth, and their performance of their role as parent and home-maker.
If the affair has seen financial resources which, but for that clandestine relationship, would have been available to the family, channelled away to the support of a third party.
For example, if the cheating partner bought their lover expensive gifts or took them on lavish holidays that were paid for from joint resources.
This situation can result in a finding by a Judge that the unfaithful spouse’s contribution has been less than that of the ‘innocent’ spouse.
Equally, if the unfaithful spouse has spent time away from the family, and with the third party, then, again, the contribution of the innocent spouse to parenting and home-making can be assessed as having been greater.
Each of these things can result in the innocent spouse receiving a greater share of the available property.
2. Post Separation Considerations
Secondly, when examining the situations of each spouse in the post-separation environment, if the cheating spouse continues with the relationship which had begun as an affair, then the financial circumstances of that relationship can be relevant.
For example, does that spouse receive financial support, whether directly, or in the form of accommodation, in connection with that relationship?
If these situations do not apply, then while the fact of the affair will be very emotionally relevant to the couple, it will not have any direct legal relevance, and will not impact on the division of their relationship wealth.
If the couple have a prenuptial agreement (Financial Agreement) which is binding, and which specifies how their property will be divided in the event of separation, then the aggrieved partner might not have a claim against the offending party, unless the financial support which has been applied to the support of the affair has been of such a level that it grounds an application to set that Agreement aside entirely.
In these scenarios, we would advise both parties to seek legal advice, because each case is different, and an assessment as to the impact of the conduct of one party on the relationship, and the evidence of that conduct, must be made.
Spousal Maintenance
Adultery doesn’t automatically affect spousal maintenance. The person earning the least may still be entitled to maintenance regardless of whether they’re the offending or aggrieved party.
For example, the division of roles in the relationship may have been such that the party who had an affair still has a need to be maintained – their health may be poor, they may have ongoing childcare commitments which affect their income and income-earning capacity, and they may have been out of the workforce for some time.
It is, however, to examine the impact of the situation of the spouse who engaged in a separate relationship – for example, are they now living with the person with whom they were engaged in an affair, and what are the financial circumstances of that relationship?
To illustrate, if that person is now living in a home owned by their ‘new’ partner, or receiving financial support from that person, then that will necessarily affect their need for spousal maintenance.
Child Custody
Adultery doesn’t, without more, affect parenting arrangements either. The courts are only concerned with the best interests of the child(ren) and will make parenting orders which achieve the best interests of the child(ren), regardless of whether one or both parents were unfaithful in their relationship.
The ‘new’ relationships of each parent will, however, be relevant if the child expresses a strong wish not to have any connection with a new relationship partner or if a new relationship partner represents a risk to the child – for example, have they perpetrated acts of family violence towards a parent, including in the presence of a child?
If so, the relationship between the parent and their new partner will be relevant to the assessment of a child’s best interests, in particular, whether the child needs to be protected from harm or the risk of harm by that person.
Frequently Asked Questions
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