It can sometimes be a testing time for couples who are experiencing separation or divorce. Unfortunately, when the relationship ends due to infidelity it can be additionally complicated and emotionally driven. Clients may be concerned that they will be disadvantaged in the property settlement if they have been unfaithful, or conversely clients may be seeking to keep most of the property in retribution.
However, Australia is a “no-fault” jurisdiction for couples seeking a divorce. This means the legal system does not place blame or value on why the relationship has dissolved or which partner was at “fault” in the marriage breakdown, whether that is due to infidelity or other factors. While it is a highly emotional issue, it is not a legal issue that will have weight during property settlements.
Family Law Act 1975
The Australian law established this principle in 1975 with the introduction of the Family Law Act 1975. Prior to the Act, evidence of a breach of the marriage contract could be used against a party who was unfaithful in Court.
Under Australia’s no fault jurisdiction, a divorce application can be filed by either spouse solely or via joint application if there has been an irretrievable breakdown of the relationship. This is generally demonstrated by 12 months of separation with no prospect of reconciliation. The Court is only interested in whether the relationship has broken down beyond repair. Couples who have been married for less than 2 years will need to take extra steps before they can apply for a divorce.
The Court will not attribute blame during Property Proceedings or reduce a party’s share of the property pool if they have been unfaithful and that caused the marriage to break down. However, in some circumstances the Court may make an adjustment when considering one spouse’s behaviour during the relationship. For example, the wasting of assets due to a gambling addiction may affect the Court’s discretion.
In determining a property settlement, the Court will consider:
- Whether it is just and equitable to make orders;
- Identify the asset pool;
- Assess the contributions;
- Consider the party’s future needs (age, care arrangements for children, income, employment, health etc).
Please contact a member of the Cheney Suthers team if you would like any further information or assistance in relation to a family law matter.