How does infidelity impact on the divorce settlement process?
In Australia, we have a no-fault divorce system which means that the Family Law Courts do not take into account or consider the conduct of the parties and any circumstances around what lead to their separation. So no need to hire that private investigator!
If you suspect your spouse is having an affair, this may give you a reason to separate and seek a property division of your assets but under the Family Law Act 1975 (Cth), it is not a basis to increase the assets you may receive.
The Family Law Courts consider the following when determining a property division:
- The asset pool, that is, all of the assets held between the parties whether in joint names, individual names, company names etc.
- The contributions each party made through the relationship including at the start of the relationship, during the relationship and post separation. The contributions can include financial and non-financial contributions as well as the contributions as a homemaker and parent.
- Once a decision has been made about each party’s respective contributions, the Court then considers whether there should be any adjustment to either of the parties. Adjusting factors include the party’s health, income and earning capacity as well as their ongoing care of children to name a few.
- The Court is also required to determine whether the division is just and equitable.
There is no basis at law for the Court to consider relationship issues such as a party having an affair when determining a property division.
One big exception to this is if there is evidence the person having an affair has recklessly wasted money on the affair, for example, depleting joint accounts or buying extravagant gifts with joint funds. These issues may be relevant and should be discussed with your lawyer.
As Family Lawyers, we understand the significant emotional toll a separation can have on our clients particularly when there has been a breach of trust after an affair. Having the knowledge of what caused the breakdown of a relationship can be relevant for your lawyer to assist you in understanding the background and potential issues that may arise however it will not result in any increase or decrease when it comes to the property division.
Similarly, when applying for an Application for Divorce to legally separate, the Court does not require any party to be at fault. The only grounds the Court needs to be satisfied of to grant an Application for Divorce are:
- That the parties have been separated for a period of at least 12 months; and
- If there are children under the age of 18, that there are satisfactory arrangements in place for their care and well being; and
- If the marriage was for less than two years, that the parties have attended marriage counselling prior to filing an application for divorce.
Once the above factors considerations are satisfied, a Court will grant a divorce order which allows both parties the ability to remarry.
Ensuring you have expert legal advice early after a separation assists our clients in having the knowledge and understanding of how best to achieve their desired outcomes.
