Infidelity and Divorce in the Australian Family Law System

Posted on January 17, 2023 by Sophia Bechara - Family Lawyer

Sophia Bechara Family Lawyer Sydney

Sophia Bechara - Family Lawyer

Author
Sophia initially joined the Unified Lawyers Family Law team in 2020 as a PLT student. Through assisting our experienced family lawyers Sophia gained invaluable experience and ignited her passion in family law. Sophia has a passion for understanding people with a particular interest in better serving their needs in the bigger picture of life and family dynamics.

Key Takeaways

    • Infidelity is a leading cause of the breakdown of relationships in Australia.

    • Prior to the 1975 Family Law Act, infidelity could be used as one of the few legal reasons someone could get divorced in Australia.

    • If your spouse has an affair, this doesn’t automatically entitle you to receive a greater property settlement outcome.

    • If matrimonial funds were used to conduct the adulterous relationship, this could be considered to be “wastage” and could result in an adjusted property settlement.

    • An act of adultery doesn’t impact parenting matters that need to be decided by the courts.

Infidelity and divorce

One of the most common reasons couples end their relationship and separate or divorce is infidelity. Affairs and cheating leads to a breakdown of trust, which commonly also results in a breakdown of the relationship.

As it’s a leading cause of the demise of a relationship, you might be wondering what the effect of infidelity is on the outcome of a divorce or separation.

In movies and television series, we often see extra marital affairs and adultery as having a significant impact on the outcome of property and financial settlements after a separation or divorce, but in Australia, if your partner has cheated on you, do you have any options for compensation?

In this article, we’re going to discuss infidelity and divorce, including whether having extra marital affairs have any effect on the outcome of property settlements and child custody in Australia and the Australian divorce system.

What is infidelity?

Infidelity can have various meanings due to the different agreements and arrangements that couples may have about what is and is not allowed in their relationship, but one of the more widely acknowledged definitions of infidelity refers to one person of a relationship having a physical affair with a person who is not their partner or spouse.

Infidelity is often seen as physical relationships with people other than a spouse, however, with the rise of different ways to communicate, people may consider infidelity to include emotional affairs and online relationships.

While infidelity and adultery are often considered to be immoral behaviours, they are not crimes in Australia. In fact, since 1994, there have been federal laws in place under section 4 the Human Rights (Sexual Conduct) Act 1994, which essentially allows sexual behaviour to occur between consenting adults. Parties to the sexual behaviour can, but do not have to, disclose their marital status.  In other countries around the world, adultery can have significant legal consequences – such as in the United States of America.

Though infidelity is not a criminal offence in Australia, polygamy and the act of bigamy are. Polygamy is when a person has more than one spouse at a time. Polygamy is not explicitly referenced in Australian legislation; however, the Marriage Act 1961 does say that you can only have one marriage at any time, with marriage being the union of two people to the exclusion of all others, voluntarily entered into for life.

Bigamy is when a person goes through a form or ceremony of marriage with any person when that person is already married to another person.

You can learn more about polygamy and bigamy here.

The Family Law System in Australia

As we touched on above, infidelity is not a crime, however, it used to play an important role in the family law system and divorce process once upon a time.

The current family law legislation that we follow now – the Family Law Act 1975 – came into effect on January 5th, 1976.

Prior to the Family Law Act, in order to get a divorce in Australia, you had to prove that your marriage had failed due to the spouse’s behaviour or actions.

Accepted causes for the breakdown of a marriage included behaviours such as drunkenness, abuse, mental illness, insanity, and adultery. Essentially, marriage was seen as a contract and a breach of this contract had to be proven.

Due to the burden of proof required for divorce, divorce wasn’t easily obtained. It was not uncommon for people to hire private investigators to prove there were grounds for divorce, and often, the process was costly and very drawn out. It also made it difficult for people who were in bad relationships, with many having to stay unhappily married.

How did the Family Law Act change divorce law?

After the Family Law Act and new divorce laws came into effect, the way in which you could obtain a divorce changed significantly.

In order to divorce, you no longer needed to prove that a spouse was at fault – rather the system became and still is, a no-fault divorce system. Instead, a couple just needs to show that they have a valid marriage and that there has been an irretrievable breakdown of their relationship, which is evidenced by a separation period of at least 12 months.

Spouses can also apply for divorce together or solely, and they do not need permission from the other spouse to apply for divorce.

One of the aims of the no-fault divorce system was to reduce the hostility that surrounds divorce, and instead, ease the stress of divorce by making the process easier. The breakdown of any relationship is already difficult without the additional pressure of proving fault of a party. The no-fault divorce system also encourages people to use other means to resolve their issues, such as mediation and alternative dispute resolution. While court action and heated debates aren’t always able to be avoided, by making the divorce process easier, there is the potential of civil relationships moving forward.

The no-fault divorce system also has the benefit of making it easier for people who are stuck in difficult and/or abusive marriages, to end the relationship.

The divorce process is separate from property settlements and parenting arrangements, which are arguably two of the most important matters to resolve when separating.

Does infidelity affect divorce?

As the Australian divorce system is a no-fault system, for the most part, infidelity does not have a legal impact on divorce in Australia.

Infidelity can of course have an emotional effect on the person who was cheated on, and this can cause additional strain and hostility in the separation or divorce process, however, the Australian courts will not usually take any actions of infidelity into consideration when diving assets.

In some other countries, there are adultery laws and various legal actions you can take against your former spouse or even the person that they had an affair with. For example, in some areas of the United States, a spouse may be able to take legal action known as the Alienation of Affection laws, sometimes referred to as the “homewrecker law”, against the person who had the affair with their spouse and be compensated.

While infidelity usually does not legal ramifications in a divorce or separation, it can still have an impact when resolving matters like property settlements and parenting arrangements.

These matters are two of the most important yet complex and contentious matters that arise during a divorce.

Property Settlement

property settlement is the process of distributing the assets of the relationship. Sometimes referred to as the matrimonial property pool, this could include assets acquired prior to, during and sometimes even after the relationship.

Settlements are usually determined by:

  • Considering the financial contributions of each party to the relationship, either direct or indirect contributions;
  • Considering the direct or indirect non-financial contributions to the relationship;
  • The future needs of each spouse;
  • The financial position of each spouse; and
  • The ability of each spouse to support themselves and/or earn money.

Property settlements can be applied for by people who were either married or in a de facto relationship. Married couples have one year from the finalisation of their divorce to apply for a property settlement, while de facto couples have two years from the date of separation to apply for a property settlements.

How can infidelity impact a property settlement?

While in some countries, infidelity may be able to be leveraged to receive a better property/financial settlement, in Australia for the most part, a court will not favour a person just because their partner was adulterous.

However, cheating can sometimes be considered a factor in the property settlement process if the person who was adulterous has spent matrimonial funds or assets to conduct the affair. This is known as “wastage” and it has to be shown that the cheating party used the matrimonial assets recklessly or in a negligent way, having an effect on the other party. When wastage is brought into question, the unique details of the situation will be used to determine whether this has occurred. If the cheating party is found to have used the matrimonial assets/funds negligently, a property settlement may be adjusted to reflect this.

Parenting Matters

When a couple with children separates, arguably the most important decisions surround the ongoing parenting of their children. They will need to decide where the children will live and when and how each parent will spend time with their children.

Regardless of whether parents are together or not, unless an order states otherwise, both parents have “equal shared parental responsibility, which means they legally must ensure that the child’s welfare, health, and development are taken care of. This also means that they are responsible for making long term decisions that affect the child and should do so together.

The parents of a child can choose to make parenting arrangements themselves and can keep these informal or formalise them through a court order known as a consent order or a parenting order. However, if parents are unable to make decisions about their children, a court may be required to intervene and make these decisions for them.

When a court makes any decision regarding children, the focus is on the best interests of the child. These interests include two primary factors, which are the right of the child to have a meaningful relationship with each of their parents, and the right of the child to be protected from harm.

If infidelity is involved and the cause of the breakdown of the child’s parents’ relationship, this still won’t have a legal impact on the court’s decisions regarding parenting matters.

How can infidelity impact parenting matters?

If the infidelity of a parent has led to a new relationship with that person, it’s best to ensure that common sense is used when making decisions regarding the child/ren. If you had an affair and are now in a relationship with that person, your ex-partner may not want your new partner to have any relationship with the child, at least not for some time.

Divorce and separation can affect children in a different ways. Some children may feel anger towards you if you were the unfaithful spouse, and they may not be interested in your new partner, while some children may be completely indifferent. Their reaction may be impacted by their age and understanding of the situation.

Introducing your children to new relationships can impact them significantly, and the decisions you make need to have your child’s best interest front of mind.

If there has been infidelity in your relationship, talk to us today

Whether you’ve recently found out that your spouse has had an affair and you’re considering divorce, or you are the partner who cheated on their spouse, you can discuss your situation and obtain legal advice from our experienced divorce lawyers. Our team is highly experienced in all aspects of divorce and separation. We can answer questions relating to your unique specific circumstances and ensure you understand your options and obligations.

Divorce is already difficult, you don’t need to make it harder by doing it alone. Call Unified Lawyers on 1800 431 519 or book a consultation using the button below.

Sophia Bechara Family Lawyer Sydney

Sophia Bechara - Family Lawyer

Author
Sophia initially joined the Unified Lawyers Family Law team in 2020 as a PLT student. Through assisting our experienced family lawyers Sophia gained invaluable experience and ignited her passion in family law. Sophia has a passion for understanding people with a particular interest in better serving their needs in the bigger picture of life and family dynamics.

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