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Infidelity and Divorce – Does an Affair Affect Financial Settlements?

Cheating partner caught by spouse. Does infidelity have an impact on financial settlements?

Will an affair impact your financial settlement?

A significant portion of marriages end due to infidelity, but does an affair affect your financial settlement? Does your cheating spouse get less when you’re dividing your assets? Unfortunately, infidelity itself doesn’t affect settlements in Australia – but that doesn’t mean you can’t thrive after your divorce. 

Is adultery a crime in Australia?

Adultery is not a crime in Australia. Australian law tends to keep its hands out of private matters within the home. So, any sexual acts between consenting adults are not for the courts to interfere with – whether one of them is married or not. 

When it comes to family law, the enactment of the Family Law Act 1975 meant that adultery was no longer grounds for divorce. In Australia, the court approaches family law with the “no fault” divorce principle. It is not relevant to the court whoever is at fault for the divorce. This means you don’t have to prove a specific cause for the divorce.  

To get a divorce, it must only be proven that there is an “irretrievable breakdown of the relationship” after a year of separation.  

In the end, a divorce can be due to many reasons, and it’s not about punishment. A divorce is when one or both of you decide to end your marriage. Although you can be filled with anger and hurt, the best you can do is move on – and that’s what we are here for.  

What happens in divorce when a spouse cheats?

Unfortunately, most of the time, divorces and property settlements are unaffected by infidelity.  

How adultery can affect your financial settlement is a little more indirect. While the act of cheating itself is not considered by the courts, your spouse’s behaviours and attitudes as a result can affect some decisions.  

For example, where abuse is involved and you or your children have been put in unsafe situations, and your contributions to the marriage have been made harder (or impossible),  your settlement could be adjusted in your favour. Sometimes a spouse can make risky and irresponsible financial decisions with or for their cheating partner, such as gambling and excessive spending on gifts or holidays. The court can consider their financial reliability and responsibility and whether they are appropriately spending for a suitable standard of living.  

This can be especially relevant in spousal maintenance claims, where financial habits are important in assessing appropriate maintenance payments. For example, a spouse with a lower income spending on a lavish life outside their financial means can lead the court to decide out of their favour.  

Cheating man with angry woman in an expensive car - infidelity and financial settlements
Photo by RODNAE Productions

How do you prove infidelity?

Remember, you don’t have to prove infidelity as a reason for your divorce.  

However, you may want to prove it regarding finances when it comes to your property settlement. Your divorce lawyers are here to help you find necessary and relevant evidence. For example, you may find some documents or statements that prove excessive spending on expensive gifts, assets, or experiences on a third party during your marriage. A court may consider this as wasted money, and it may affect how property and assets are divided. 

You can also try and find evidence relating to any debts from risky business decisions that were influenced by your spouse’s infidelity. 

How can you cope with a cheating spouse and your divorce?

Finding out about a cheating spouse can bring up so many emotions, and the divorce process can feel like it’s racing toward you. You may feel angry and want majority custody or more out of the property settlement – we get it. That’s where a divorce coach can help. This is a big life change, and we want to make sure that life after divorce is as manageable for you with the best possible results. We don’t want your settlement to be a fight – but a fair and realistic negotiation.  

Remember, there is a “no fault” divorce system in Australia. We know that cheating can cause a lot of tension, but we don’t want this hurt to affect you negatively in your arrangements after divorce. Taking an aggressive approach to a settlement can leave you with less than you hoped for. So let us help you figure out the legal side of things and make wise decisions about your financial future and your children’s future. 

But taking the emotion out of your decisions is easier said than done, right? At Divorce Hub, we have a certified divorce coach, Marg Doherty, who will help you get through your divorce. Marg has been through it herself and can help you get through it, too. Divorce can be so emotional and there are more aspects to it than just the legalities. Learn more about our divorce coaching packages here. 

Disclaimer: This is general legal information. For specific advice, please get in touch with Divorce Hub.

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