Separation After Infidelity: A Brisbane Divorce Lawyer Weighs In

There are many reasons why a marriage or de facto relationship could break down, and infidelity is one of them. A common misconception around infidelity is that it can be used as a reason to gain certain property settlement or child support arrangements; this is not the case. So, what are the legal consequences if a partner is caught having an affair? We asked a Brisbane divorce lawyer from Emerson Family Law to explain the legalities surrounding this issue.


History of Divorce in Australia

Prior to the Family Law Act 1975, divorce in Australia was granted if one partner could prove that the other partner was at fault for the relationship breakdown. Grounds for divorce included adultery, desertion, insanity and habitual drunkenness. To prove fault, a spouse would hire private investigators and lawyers to collect enough evidence to support the claim. As you can imagine, this process was expensive.


What Does the Law Say Now About Infidelity?

Once the Family Law Act was passed, the ‘no fault’ clause was introduced. This ‘no fault’ clause was introduced to help reduce the hostile nature of divorce and making it easier for former spouses to maintain civil relationships. Today, the only one grounds for divorce is irretrievable breakdown of a relationship.

Under this ‘no fault’ divorce system, an application for divorce can be filed by either spouse. For a divorce to be granted, our Brisbane divorce lawyer explains that a married couple must be separated for 12 months.


Infidelity and Property Settlement

When determining a property settlement after separation, an ex-spouse’s conduct does not mean that the other spouse receives more of the property pool. According to our Brisbane divorce lawyer, the ‘no fault’ clause means the law does not take into account the immoral behaviour of a spouse. The focus remains on dividing the property pool based on how the property has been acquired and the financial situation of both parties. Having said that, there are some slight exceptions to this rule. Although married couples in Australia no longer need to prove a reason for divorce, certain ‘faults’ can still be important, especially in a property settlement. A spouse may be able to legally gain some compensation if an ex-spouse’s behaviour has resulted in wasted funds.

Wasted funds, or a negative contribution to the property pool, can be attributed to one party if:

  • One party has conducted themselves in a way designed to minimise the value or worth of assets; or
  • One party has wasted the matrimonial assets recklessly, negligently or wantonly, for instance, spending the money on a lover.

Another exception to this law that is unrelated to infidelity, is domestic violence. Should a spouse experience any form of violence throughout the marriage, please seek legal help as soon as possible.


Speak to a Brisbane Divorce Lawyer at Emerson Family Law

If you are in the midst of a separation where infidelity was involved, we suggest speaking to a Brisbane divorce lawyer to understand your legal options. Our team are experienced in all divorce and separation situations, plus a number of other family law issues such as property settlement and children’s matters. Make an enquiry online, or call us on (07) 3211 4920.