Infidelity – Does cheating impact my divorce?

There are often many different reasons why a marriage may break down.

Infidelity can be characterised in a multitude of ways. Commonly infidelity in a relationship refers to one party being unfaithful such as having a physical affair with another person. Now given the prevalence of social media, emotional or online infidelity also causes many problems.

In accordance with the Family Law Act 1975, in Australia our system provides for ‘no-fault’ divorce. The only ground for divorce is referred to as an ‘irretrievable breakdown of marriage’, which must be evidenced by a separation period of no less than 12 months.

This means that the court will not consider why or how the marriage broke down. This means infidelity plays no part in whether there are sufficient grounds to obtain a divorce.

Does emotional or physical infidelity affect my property settlement in Australia?

It is important to remember that following the breakdown of a marriage, divorce and property settlement matters are dealt with separately in Australia.

Following separation, when pursuing a family law property settlement, people often ask if the fact that their partner has been unfaithful during the relationship, makes a difference as to how the matrimonial property is divided following separation.

In Australia, as outlined above, we have a ‘no-fault’ jurisdiction when it comes to ending a marriage and obtaining a divorce. Similarly, when determining how the matrimonial property should be divided between parties following separation, the cause of the marriage ending, does not affect property settlement matters i.e. a cheating party would not receive less just by virtue of their unfaithful conduct.

For more information about property settlement and the relevant considerations.

Financial infidelity and property settlement

Whilst in most cases infidelity has no bearing on the outcome of a matrimonial property settlement matters, there are some occasions that a cheating spouses financial conduct may be considered.

The only time that conduct associated with cheating could potentially be a factor considered by the court, is if the cheating party has ‘wasted’ matrimonial assets in a reckless or negligent way.

Whilst whether a person’s spending constitutes wastage is determined by a detailed examination of the discrete facts of each individual case. In this context, an example of wastage could be a cheating spouse spending matrimonial funds on gifts or holidays for their new girlfriend or boyfriend. In order for a wastage argument to be successful, strong evidence is required to support that dissipation of assets or property has resulted in a negligent and/or reckless reduction of the matrimonial property pool that in turn has a detrimental effect on the other party’s entitlement.

It is important to obtain legal advice with respect to obtaining a divorce and finalising outstanding property settlement matters. Property settlement is also an important consideration if you have been a party to a de facto relationship that has broken down.

The above advice is general in nature and not intended to replace legal advice.

Our family law team at Ramsden Lawyers can provide expert advice regarding your options. Please contact our Gold Coast and Sydney family lawyers for a free confidential initial consultation.