There are often many different reasons why a marriage may break down.
Infidelity can be characterised in a multitude of ways. Commonly infidelity in a relationship refers to one party being unfaithful such as having a physical affair with another person. Now, given the prevalence of social media, emotional or online infidelity also causes many problems.
This type of distraught can leave you wondering —
Is it illegal to cheat on your spouse in Australia?
Let’s answer this question below.
WHAT IS INFIDELITY?
Infidelity, commonly referred to as cheating or adultery, involves one partner breaking the trust of a relationship by being emotionally or physically unfaithful. This can manifest as a physical affair or, with the rise of digital communication, through emotional and online infidelity.
Although infidelity often leads to significant emotional distress and may be a factor in the breakdown of a marriage, it does not hold legal significance in divorce proceedings in Australia due to a no-fault divorce system.
In Australia, infidelity is considered a private matter and does not have legal repercussions in divorce proceedings. This law focuses on the irretrievable breakdown of a marriage rather than assigning blame.
HOW THE FAMILY LAW ACT CHANGED THE RULES REGARDING DIVORCE AND INFIDELITY?
Australian divorce law before 1975 was fault-based, requiring proof of wrongdoing like infidelity, abuse, or desertion. This created a contentious and drawn-out process that often required private investigators and formal court battles.
The introduction of the Family Law Act 1975 marked a significant change by creating a no-fault divorce system under federal law, which removed the need to prove any form of misconduct, such as infidelity, to get a divorce. Now, the only ground for divorce is an “irretrievable breakdown” of the marriage, demonstrated by a 12-month separation period.
In 1994, a federal law, the Human Rights (Sexual Conduct) Act, further affected the handling of private matters related to sexual conduct among consenting adults. This emphasised the shift toward no-fault divorce principles and its implications for marital status and the grounds for divorce in Australia.
This shift has helped to reduce the hostility in divorce cases and encourage more amicable resolutions, such as mediation.
For more information on divorce and family law in Australia, read this resource from Australian Institute of Family Studies.
THE ROLE OF INFIDELITY IN DIVORCE PROCEEDINGS
Infidelity can play a significant role in divorce proceedings in Australia, although it is not a ground for divorce in itself. While the court does not consider fault in determining the outcome of a divorce, infidelity can have an emotional impact on the parties involved and may affect the divorce process.
In some cases, infidelity may be considered a factor in property settlement negotiations, particularly if one party has dissipated marital assets through an extramarital relationship. However, this is not always the case, and the court’s primary concern is ensuring a fair and equitable distribution of assets.
Infidelity can also impact child custody decisions. If a parent’s infidelity has a direct negative impact on the child’s well-being, the court may take this into account when making decisions regarding child custody.
DOES EMOTIONAL OR PHYSICAL INFIDELITY AFFECT MY PROPERTY SETTLEMENT IN AUSTRALIA?
It is important to remember that following the breakdown of a marriage, divorce and property settlement matters are dealt with separately in Australia.
When pursuing a family law property settlement, people often ask if their partner has been unfaithful during the relationship makes a difference to how the matrimonial property is divided after separation.
In Australia, as outlined above, we have a ‘no-fault’ jurisdiction when it comes to ending a marriage and obtaining a divorce. Similarly, when determining how the matrimonial property should be divided between parties following separation, the cause of the marriage ending, or the marital status of the parties involved, does not affect property settlement matters i.e. a cheating party would not receive less just by virtue of their unfaithful conduct.
For further information on property settlement and divorce matters, read our article on property settlement and the relevant considerations.
FINANCIAL INFIDELITY AND PROPERTY SETTLEMENT
Whilst in most cases infidelity has no bearing on the outcome of a property settlement matters, there are some occasions that a cheating spouses financial conduct may be considered.
In Australia, infidelity is not treated as a criminal offence, even though it may have financial implications in property settlements.
The only time that conduct associated with cheating could potentially be a factor considered by the court, is if the cheating party has ‘wasted’ matrimonial assets in a reckless or negligent way.
Whether a person’s spending constitutes wastage is determined by a detailed examination of the discrete facts of each individual case. In this context, an example of wastage could be a cheating spouse spending matrimonial funds on gifts or holidays for their new girlfriend or boyfriend.
In order for a wastage argument to be successful, strong evidence is required to support that dissipation of assets or property has resulted in a negligent and/or reckless reduction of the matrimonial property pool that in turn has a detrimental effect on the other party’s entitlement.
It is important to obtain legal advice with respect to obtaining a divorce and finalising outstanding property settlement matters. Property settlement is also an important consideration if you have been a party to a de facto relationship that has broken down.
To learn more about divorce and property settlement, read this resource from the Attorney-General’s Department.
DOES INFIDELITY CAUSE PROBLEMS IN CHILD CUSTODY AND PARENTING MATTERS?
In Australia’s family law system, infidelity does not play a role in determining child custody or parenting arrangements. The court’s primary concern is the best interests of the child, focusing on ensuring the child’s safety, welfare, and meaningful relationships with both parents.
Infidelity might cause emotional upheaval between parents, but unless it directly impacts the well-being of the child, such as exposing the child to inappropriate circumstances, it will not be considered in custody matters. The court ensures that both parents maintain equal shared parental responsibility, regardless of any moral judgments related to the relationship breakdown.
Since 1994, Australian federal law has allowed consenting adults to engage in consensual sexual behavior without legal consequences, highlighting the private nature of such relationships.
PROVING INFIDELITY IN COURT
Proving infidelity in court can be challenging, as it often relies on circumstantial evidence. In Australia, the court does not require proof of infidelity to grant a divorce, as the no-fault divorce system means that the court does not consider fault in determining the outcome of a divorce.
However, if infidelity is relevant to property settlement or child custody negotiations, parties may need to provide evidence to support their claims. This can include witness statements, emails, text messages, and other forms of communication.
It is essential to note that proving infidelity in court can be a complex and sensitive issue, and parties should seek the advice of a qualified family lawyer to navigate the process.
Ramsden Lawyers are here to support you every step of the way. Please take a look at our family law services page to see how we can help.
YOU’RE NOT ALONE – WE’RE HERE TO HELP
Divorce and separation, particularly when involving infidelity, can be emotionally taxing and legally complex.
At Ramsden Lawyers, our experienced family law team is here to support you every step of the way.
Whether you are dealing with the end of a marriage or navigating property settlements and child custody arrangements, we provide expert advice tailored to your situation.
Our family law team at Ramsden Lawyers can provide expert advice regarding your options.
Contact us today for your first consultation.
Posted in: Divorce
September 12 2024
