How Does Infidelity Influence Divorce Settlements in Australia?

Clarity Lawyers Blog Divorce On Infidelity

Marriage, for many, represents a bond of trust and commitment. But what happens when this bond is broken due to infidelity?

In many cases, the break down of a couple’s bond after infidelity results in the breakdown of the relationship, leading to a separation or divorce.

When infidelity occurs in a relationship, it can leave many wondering if this can sway the outcome of divorce settlements. In the movies we often see an affair having a significant impact on the division of assets but does infidelity affect divorce settlement in Australia?

In this article, we’re going to discuss infidelity and how it is viewed by the family law system in Australia, with the aim of helping you to understand how it can affect your separation or divorce settlement.

What is infidelity?

Infidelity refers to an act where a married individual forms a meaningful relationship outside their marriage, often culminating in a physical affair.

While considered a breach of trust and a primary reason for marital breakdown, its legal consequences in Australian divorce proceedings might surprise many.

Is infidelity illegal or a crime in Australia?

In Australia, matters of personal relationships and marital fidelity fall outside the realm of legal system. Hence, infidelity, while emotionally and morally impactful, is not considered a criminal offence in Australia.

However, while infidelity itself isn’t a crime, actions that are sometimes associated with an affair could have legal consequences, especially if they involve issues like harassment, stalking, or any form of violence.

It’s also worth noting that the emotional repercussions of infidelity can be profound, and its presence can influence personal decisions during the divorce process, even if not the legal outcomes directly.

It is important to note though, historically, adultery was a ground for divorce prior to introduction of the Family Law Act 1975, where the no fault divorce system was introduced.

Australian divorce law and the Family Law Act 1975

The Family Law Act 1975 sets the foundation for divorce law in Australia.

As we touched on above, prior to the Act being introduced in 1976, adultery was a ground for divorce in Australia, which means that it was one of the few reasons that could make divorce possible in Australia.

Once the Act was brought into legislation, the divorce system changed to be a no-fault divorce system. This means that neither party needs to prove that the other party was at fault for the break down of the relationship, rather that there has been a breakdown of the relationship that is unfortunately, unable to be rebuilt.

The Family Law Act has also been developed to so that when determining property settlements or child custody, the Court’s decisions are based on a range of factors, but not the conduct of either spouse.

Property settlements in the wake of infidelity

In Australian divorce proceedings, the actual act of infidelity does not directly affect how assets are divided. The primary focus is on ensuring a fair distribution based on factors like each party’s contributions (both financial and non-financial), future needs, and ensuring the division is just and equitable. You can learn more about the property settlement process here.

However, while a cheating spouse or extra marital affair largely will not have an affect on the property settlement, there is the concept of wastage that may be relevant in some circumstances.

Wastage refers to a spouse’s behaviour, where the reckless or intentional reduction of the matrimonial asset pool without the consent of the other party. It can occur in various forms, such as through excessive gambling, intentional destruction of property, or even incurring unnecessary debts. In the context of infidelity, wastage might include spending large sums of money on a new partner, such as buying them expensive gifts, paying for luxury trips, or even setting them up in a new home.

If one party can prove that the other party has wasted assets of the matrimonial property pool, especially in the context of an affair, the court may adjust the property settlement in favour of the non-wasting party. This is to ensure that the party not responsible for the wastage is not unfairly disadvantaged.

Clarity Family Lawyers Blog Parenting Arrangements

Parenting arrangements after infidelity

The emotional fallout of an affair can undeniably ripple through a family, affecting not only the couple involved but also their children. While this may raise concerns, in Australia, when determining matters that affect children, like parenting arrangements, the primary concern is the best interests of the child.

The principle of the “best interests of the child” is paramount in Australian family law. This principle ensures that decisions regarding child custody, residence, and parenting time prioritise the child’s well-being, safety, and holistic development.

While the act of infidelity itself is not a direct factor in determining parenting arrangements, several considerations come into play, including:

  • Relationship with Parents: The nature and strength of the child’s relationship with each parent.
  • Capacity to Provide: An assessment of each parent’s ability to provide for the child’s emotional, intellectual, and physical needs.
  • Safety: Any history of family violence or child abuse is taken seriously and can heavily influence decisions.
  • Child’s Views: Depending on their age and maturity, the child’s wishes and feelings may be considered.

Although infidelity doesn’t directly factor into parenting arrangements, the consequences of an affair can indirectly affect outcomes. For instance:

  • Emotional Stability: If a parent’s involvement in an affair leads to significant emotional instability that could harm the child, this might be considered.
  • Introduction of a New Partner: How and when a parent introduces their new partner to the child, especially if it’s soon after the separation, can be a point of contention.
  • Disruption to Child’s Life: If the affair leads to factors that disrupt the child’s routine, environment, or emotional well-being, these could influence custody decisions.

It’s also important to be aware that effective co-parenting can be challenging, especially in the wake of infidelity. The emotional strain can impact communication between parents, which is crucial for the child’s adjustment and well-being. Australian courts often recommend mediation or counseling to help parents navigate these challenges, ensuring they prioritise their child’s needs above personal grievances.

Emotions vs. Legal Reality

The emotional repercussions of infidelity can be devastating, leading many to believe it will heavily influence divorce outcomes. While it’s common sense that a cheating partner has breached trust, in the realm of Australian law, matters are viewed differently. Divorce proceedings, parenting matters and property division focus more on fairness and objectivity, not on assigning blame.

The Importance of Legal Advice in Difficult Times

Dealing with infidelity is tough, and the complexities of divorce law can be daunting so it’s easy to feel overwhelmed. The emotional strain can cloud judgment, making it challenging to understand your rights and the best course of action.

In these trying times, it’s highly recommended to seek legal advice from an experienced family lawyer. Some of the ways in which they can help you include:

  • Provide objective insight: A qualified family lawyer provides an objective perspective, ensuring that decisions are based on legal grounds rather than raw emotion.
  • Understanding Rights: The complexities of family law can be daunting. A professional can help you understand your rights, especially in areas like property settlements, child custody, and spousal maintenance.
  • Strategic Decision Making: A good lawyer not only advises but also strategises, helping you make informed decisions that align with your best interests.

For those in Australia, our team here at Clarity Lawyers an help you. We’re a family law firm with many years of experience with helping people navigate their way through challenging separations. Our team of experienced family lawyers is equipped to guide you through the intricacies of family law and ensure that you obtain legal advice tailored to individual circumstances.

Discuss your situation with us today

Infidelity, while emotionally charged, doesn’t directly tilt the scales in divorce settlements in Australia. The no-fault divorce system ensures an objective, just, and equitable distribution, irrespective of the reasons for marriage breakdown. While the pain of adultery is real, when navigating divorce in Australia, it’s crucial to separate emotions from the legal process.

If you’ve recently separated and wondering your next steps or you have questions about any aspects of your divorce proceedings, you can discuss your situation with us today by calling us on 02 4011 8420 or booking a consultation here.

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Rli Samantha@2x
Samantha Miller

Samantha has been a lawyer since 2001 having followed in the steps of her father, grandfather, great-grandfather and great-great-grandfather. No one can say she didn’t know what she was getting into!

Initially admitted in 2001 as a solicitor in NSW and Australia, Samantha moved to the UK where she was admitted as a solicitor in England and Wales in 2002. After working in several different areas of the law in large London firms, she determined that family law was her calling and hasn’t looked back.


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