Infidelity in Family Law Proceedings: What You Need to Know

Infidelity in Family Law Proceedings

By Ezra Sarajinsky

· Read time: 5 minutes

Infidelity is a common issue in family law proceedings. While it can have significant emotional impacts, it is less clear what it changes for the legal issues in a family law matter.

Infidelity, or cheating, is a common reason for the dissolution of a relationship. It breaks down trust, leading to the breakdown of the relationship itself. As a leading cause of relationship breakdown, it’s natural to wonder how infidelity impacts the outcome of a divorce or separation.

While popular media depicts adultery as significantly affecting property and financial settlements, it’s essential to know whether compensation is available in Australia for a cheating partner. 

What is Infidelity?

Infidelity is when one partner in a marriage or de facto relationship engages in a sexual relationship with someone outside of the relationship without the other partner’s consent.

All couple’s will have their own boundaries. This may include ‘emotional affairs’ where there is no physical intimacy. It can include excessive communication with others on social media, or the use of dating apps and so on. The point is that “infidelity” can take forms other than an actual sexual relationship.

History of the Family Court System and Evolution of No-Fault Divorce

Prior to the introduction of the Family Law Act in 1975, fault-based divorce was the norm in Australia. This meant that divorce needed to be granted by the Court, and they in turn needed to be convinced that one spouse had engaged in an action of wrongdoing, such as drunkenness, lack of affection, or infidelity. 

Divorce cases often involve the use of private investigators, false allegations, and other unethical tactics to gain an advantage, as the aggrieved spouse may receive a larger share of the property settlement.

The passing of the Family Law Act in 1975 act introduced the concept of no-fault divorce, which means that the reason for the breakdown of the marriage is no longer relevant to the divorce process.

Does Infidelity Affect Divorce?

In Australia, the only ground for divorce is irretrievable breakdown of the marriage. This means that the reason for the breakdown, including infidelity, is not relevant.

Does Infidelity Impact a Property Settlement?

In general, infidelity is not taken into account when dividing property between parties.

Infidelity may be specified in a ‘prenup’ or BFA, in which case the property settlement would proceed according to the BFA.

How Can Infidelity Impact Spousal Maintenance?

Similar to property settlements, the court does not take infidelity into account. The guilty partner will not be penalised by being required to pay higher spousal maintenance contributions, and the innocent spouse will not be exempt from paying financial maintenance solely because their former spouse was unfaithful.

How Can Infidelity Impact Child Custody Matters?

Infidelity has no bearing on child custody and entitlements. Rather, the Family Act mandates the court to prioritise two factors: maintaining a meaningful relationship with both parents and protecting children from all forms of violence, neglect, or abuse, whether physical or psychological. 

The paramount consideration is always the welfare of the child. However, in practice, infidelity may be relevant if a spouse’s new partner has a detrimental effect on the child’s well-being.

My Ex Cheated on Me, Do I Get Everything in the Divorce?

Infidelity is not a factor in determining the division of property between parties. 

While infidelity can cause immense emotional harm, the Court does not take a view of trying to punish one partner for their infidelity. 

In summary, the infidelity is unlikely to affect the amount of assets in a divorce settlement.

Circumstances Where Infidelity Does Affect Divorce Law

While infidelity is not relevant to the divorce process, it may be considered in certain circumstances, such as if the infidelity has affected the parties’ finances or if it has resulted in a breakdown of the relationship between the parties.

FAQs about Infidelity, cheating, and family law proceedings

What about Polygamy or Polyamory?

Polygamy and polyamory are both forms of consensual non-monogamy. In situations where a couple practises a form of non-monogamy, ‘infidelity’ may be more complex to establish. However, again the factors that resulted in the breakdown of a relationship are not of high significance in determining the post-breakup ramifications. 

What If My Partner Has Started Living with Their New Partner?

The court will not take into account a new partner’s income or assets when determining property settlements. However, if the new relationship has resulted in a significant change in the party’s financial circumstances, it may be considered relevant.

What If My Partner Has Spent Money on Their New Partner?

If a party has spent money on a new partner, it may be considered relevant when determining contributions to the property pool. However, the court will only take this into account if it is satisfied that the spending was excessive or inappropriate.

Infidelity can have significant emotional impacts on parties in family law proceedings. However, in most cases, it will not have a direct impact on the legal outcome of the case. 

Need assistance?

If you are going through a family law matter and have concerns about infidelity, it is important to seek legal advice.If you would like help with a family law matter, book a time here to speak with a team member.

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