Although difficult to quantify, studies have predicted around 20% of couples are affected by sexual infidelity. Individuals burned by their spouse’s infidelity often seek retribution during divorce and property settlement proceedings.
It is important to note that a divorce and property settlement are two different things.
A divorce is the formal conclusion of a marriage, whereas a property settlement is the division of assets and liabilities after separation.
Spouses affected by infidelity are more likely to try and have their spouses’ extramarital affairs brought up during property settlements, which will likely not have any effect on proceedings.
In some countries adultery is a crime, however in Australia this is not the case as long as sexual conduct occurs between two consenting adults.
How Does Infidelity Affect Divorce and Property Settlements
Divorce and property settlements in Australia are governed by the Family Law Act 1975 (FLA). The FLA came into force in 1975 and with it, the introduction of no-fault divorce.
No fault divorce allows for a couple to divorce without the need for either party to be at fault for the breakdown of the marriage. Therefore, fault is not relevant to the Court during divorce or property settlement proceedings.
In short, infidelity has no effect on divorce or property settlements, however there are some very specific examples where the consequences of infidelity can impact property settlements.
There are limited circumstances where the impacts of infidelity can be relevant to property settlements.
If an adulterous spouse has spent exorbitant amounts of money on the person that they had an affair with, perhaps paid for their holidays, accommodation or bought them lavish gifts, then this may be considered excessive spending and constitute wastage which may be considered by the Court when making property orders. This is because the Court may see this type of spending as reckless or negligent use of the marital pool of assets.
In these types of cases, the wastage principle may apply where spending is considered wastage if the spending is not justifiable in decreasing the size of the asset pool due to reckless, intentional or negligent waste of funds.
It is also important to note that infidelity does not impact parenting agreements and orders.
In the case of Gans & Albert  FMCAfam 300 (11 April 2013), the husband determined the wife had been having an extramarital affair after reading her diary while she was away on holiday.
The husband then established that the wife had spent a significant amount of money on her lover, upwards of $100,000. The Court considered the amount wasted on the affair when making the property orders and the amount was reflected in the final distribution.
Although cases demonstrating this type of wastage are rare, this type of wastage is still relevant to property settlements, however the actual act of infidelity is not.
Moving Forward after Infidelity
Moving forward after infidelity can be challenging. It is important to keep emotions in check and not aim to seek revenge during property settlements.
It may be valuable to see a counsellor or psychologist in order to move forward after infidelity. Relationships Australia can be contacted at 1800 050 321 and can help locate a local family law counsellor.
What are the psychological impacts of infidelity on the parties involved in a divorce?
The psychological impact of infidelity can be significant, leading to feelings of betrayal, loss of trust, and emotional distress. These effects can complicate divorce proceedings, particularly in mediation and counselling.
How does the legal definition of ‘infidelity’ in Australia impact divorce and property settlement cases?
In Australia, infidelity is generally viewed as a breach of trust within a marriage, but it doesn’t have a specific legal definition impacting divorce directly due to the no-fault divorce system. However, if infidelity leads to financial wastage, it may influence property settlements.
How are assets and liabilities divided in divorce proceedings when infidelity has led to financial discrepancies?
When infidelity leads to financial discrepancies, such as one partner spending marital funds on an affair, the court may adjust the division of assets and liabilities. The court aims to ensure a fair and equitable division, considering the impact of the financial actions of the unfaithful spouse.
What legal protections exist for the financially disadvantaged spouse in a divorce involving infidelity?
In divorces involving infidelity, especially when it leads to financial inequity, the disadvantaged spouse may seek legal redress. The court can consider these circumstances when determining spousal support or adjusting property division to protect the interests of the financially disadvantaged spouse, ensuring fairness in the settlement.
What role do extramarital affairs play in child custody decisions, if any?
While extramarital affairs don’t directly influence child custody decisions, the behaviour of parents during the affair, such as neglect or impact on the child’s well-being, could be considered when determining custody arrangements.
Kate Scolyer – Solicitor– Matthies Lawyers
Disclaimer: This article contains general information only and is not intended to be a substitute for obtaining legal advice.