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    The impact of infidelity in Family Law Matters in Australia

    31/03/21 10:03 AM

    You may have heard of the following scenario:

    • A Husband hires a private investigator to determine whether his Wife is unfaithful, a suspicion he has held for many months;
    • That private investigator finds evidence that Wife has in fact been unfaithful;
    • As a result of the Wife’s infidelity, the Husband receives a higher proportion of the parties’ matrimonial assets.

    Such a scenario is not uncommon in television shows. And indeed, in America and some parts of the world, there is some truth to the idea that infidelity is a factor taken into account by the Family Courts during a divorce. In some places, there even has to be a reason, such as infidelity, before a spouse can apply for a divorce.

    In Australia however, the reasons for separation are not relevant when considering property divisions, parenting arrangements for the children and whether the parties can divorce in general. This includes infidelity. In Australia, we have what is often referred to as a ‘no-fault’ system.

    The factors surrounding separation, may of course, be relevant. To clarify:

    Divorce in General

    In Australia, in order to apply for a divorce, the only ground that a spouse needs to satisfy, is that the marriage has broken down irretrievably. To show that a marriage has broken down irretrievably, a spouse (or the spouses), only need to show that they have been separated for a period of at least 12 months. There is no requirement to outline the reasons why you wish to divorce.

    Property Settlements

    In Australia, the reasons for separation also have no impact on the percentage division of matrimonial assets that each party will receive in a property settlement. Instead, the Family Courts in Australia assess a number of factors, including:

    • the contributions made by the parties prior to, during and after the relationship has ended;
    • the future needs of the parties;
    • other factors in order to determine the division.

    Of course however, if a spouse discovers that their partner has been transferring joint money into an unknown account, then that will be relevant in determining whether assets have been wasted and this may impact upon the property settlement. However, the fact that that spouse has breached the trust of the other party is not the reason itself which would entitle the other party to a higher portion of the asset pool.

    Parenting Arrangements

    In Australia, the reasons for separation are also not a consideration when determining the parenting arrangements for children and what is in the children’s best interests. However, where there has been a history of family violence, which leads to separation, then that family violence will be a factor in determining what parenting arrangements are in the children’s best interests including the need to protect them from any harm.

    If you have any questions in relation to the information provided in this blog, or would like to discuss your situation, please do not hesitate to get in contact with one of our experienced family lawyers at Frank Law on (02) 9688 6023 or via frank@franklaw.com.au.

    This is not legal advice. 

    Jeremy Ball

    Written by Jeremy Ball