Principal of Justice Family Lawyers, Hayder specialises in complex parenting and property family law matters. He is based in Sydney and holds a Bachelor of Law and Bachelor of Communications from UTS.
Infidelity and divorce – divorce entitlements after adultery?
While in Hollywood films, infidelity and cheating have a significant financial impact on how a divorce plays out, in Australia, things are actually quite different from what we see on the silver screen.
This wasn’t always the case, however.
In fact, before 1975, if you wanted a legal separation in Australia, the only grounds for divorce was to prove your spouse was to blame.
The grounds for this varied, from habitual drunkenness to adultery, but the courts required proof and many divorce cases involved the use of private investigators to prove infidelity.
For some couples who had agreed to split amicably, they would go to such lengths as to ‘stage’ infidelities, so they had evidence to use in court.
This all changed in 1975, with the introduction of the ‘no-fault’ divorce and The Family Court system by the Whitlam government.
Infidelity and Divorce – is it required
For most of the twentieth century, marriage, divorce and all other family law matters were considered matters of state law.
Marriages were looked at as contracts, meaning that any couple wanting to divorce had to prove the contract of marriage had been broken.
Consequently, this meant for a court to grant a divorce, it had to find that one of the people involved was at fault for breaking the contract of marriage.
This could be seen to be the case through desertion, infidelity, habitual drunkenness, cruelty, insanity or imprisonment and usually involved spouses hiring private investigators to prove the offending party to be at fault.
These laws were deeply rooted in religious principles and sought to punish the ‘sinning’ party.
Changing social attitudes saw the implementation of the no-fault divorce in 1975, which came with the passing of The Family Law act.
A federal family court was also established to deal with all family law matters. The act established that the only grounds for divorce was the ‘irretrievable breakdown of marriage’ which must be evidenced with a separation period of no less than 12 months.
Many other modifications came with these new laws including the separation of divorce from arrangements regarding property settlement, spousal maintenance, child maintenance and child custody.
Whereas previously, committing adultery greatly affected the division of assets and the amount of spousal maintenance to be paid out, this is no longer the case.
While there are some exceptions, cheating on your spouse generally won’t affect the court’s decision as to how your assets are divided. Nor will it affect how much spousal maintenance you pay or how often you can see your kids.
One such exception is if the court deems that through the course of the affair, you wasted the matrimonial assets recklessly or negligently.
Divorce entitlements after adultery
In Australia, divorce proceedings and property settlements are now dealt with separately.
This means there is no increase in divorce entitlements after adultery.
Married couples have one year from finalising their divorce to make an application for a property settlement. In contrast, de facto couples have two years from the date of separation.
When determining a property settlement, the court will consider:
· If making orders relating to property division is just and equitable
· The combined asset pool of the parties involved, including any liabilities
· Financial contributions to the marriage over time. This may include lump sums such as inheritances
· Non-financial contributions to the marriage over time, including homemaking duties and who took on the primary role of caring for any children
· The future needs of each spouse, including their age, health and capacity to earn
Infidelity by a spouse is not an element that the court will take into consideration.
There are, however, certain circumstances where a court will adjust the property settlement due to one of the spouse’s behaviour.
This may occur if there is a history of prolonged family or domestic violence. In such a case, the court may compensate the victim financially by adjusting the percentage of the property settlement they receive.
If a spouse is deemed to have recklessly wasted the matrimonial assets on gambling, risky business decisions or spending excessively in relation to the infidelity, the property settlement may again be adjusted to reflect this.
Infidelity, Divorce and Spousal Support
When there is an irretrievable breakdown of any marriage, regardless of the reason, the less financially independent party can apply to the court for spousal maintenance.
There are two types of spousal maintenance applications that the Family Court deal with. These are:
Under the Family Law Act (1975), when a former husband, wife or de facto partner is unable to adequately support themselves, it is the responsibility of the other party to provide financially.
How is infidelity and divorce, related to spousal maintenance?
Spousal maintenance entitlements after adultery do not change.
When assessing for spousal maintenance, the court considers both the needs of the person making the application and the ability of the respondent to pay for their ex’s lifestyle.
· The court will assess both of you based on factors such as:
· Your age
· The state of your health
· Your current income, investments and other financial resources
· What is a suitable and fair standard of living
· If the marriage at any time affected your ability to earn an income
Adultery and Child Custody
Do child custody entitlements after adultery change for the cheating parent?
In line with the ‘no-fault’ divorce, adultery plays no role in how the court assigns child custody.
When a court makes a parenting order about who gets primary custody of the child, it will always do so taking into account what is in the best interests of the child.
This is regardless of how or why the relationship broke down.