Adultery, or extramarital sex between a married person and someone other than their spouse, is one of the major causes of divorce in Australia.

If your marriage is ending due to your or a partner’s adultery, you might be wondering whether the adultery in question will have some legal or financial impact on the divorce and property settlement proceedings.

Due to historical precedents, there are many common misconceptions around divorce entitlements after adultery in the Family Court of Australia. So what are the legal consequences if your partner is caught being unfaithful?

Here is what you need to know about divorce entitlements after adultery in Australia.

History of Divorce in Australia

Prior to the Family Law Act 1975, individuals were required to prove “fault” in order to have legal grounds for divorce. Acceptable grounds varied from adultery to insanity, and parties had to provide evidence to show that these grounds caused the breakdown of the marriage. The reasoning behind this was that a marriage was considered a contract, so proof of a violation of the terms of this contract resulted in the contract becoming void.

When the Family Law Act 1975 was passed, a ‘no-fault’ clause was introduced to divorce proceedings. This meant that for a couple to divorce, the contributing actions of either party to the breakdown of the marriage were no longer considered by the court.

In Australia, either party in a marriage can file for a divorce without specifying a reason. The only grounds for divorce necessary to prove is ‘irretrievable breakdown of marriage’, evidenced by the partners having a separation period of no less than 12 months.

Does Adultery Affect Property Settlements After a Divorce?

The Family Law Act separates divorce from property settlement matters, so this ‘no-fault’ divorce clause signifies that the cause of the marriage’s breakdown does not affect the property settlement. This means that an unfaithful partner will not automatically receive less of the property pool due to their adulterous behaviour. Instead, the courts will look at a variety of circumstances when deciding how to divide property, including:

• Each individual’s income
• The financial contributions of each party to the marriage
• The party’s future needs and ability to earn income
• The future needs of any children involved in the marriage

In reality, the occurrence of adultery does not factor into these calculations.

However, it’s important to note that while infidelity typically has no effect on divorce proceedings, there are instances where fault can affect divorce entitlements after adultery has occurred. This happens when a spouse may be entitled to 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.

Have more questions regarding divorce after adultery?

If you are considering a divorce or are already in the process of separation where adultery was involved, our experienced family lawyers in Brisbane are here to help.

With extensive experience in divorce and separation law as well as children’s matters, our team can make sure you get the legal advice and representation you need.