We are sometimes asked whether there is any way of seeking compensation from a former partner because that person cheated during the relationship or otherwise acted in a way inconsistent with how an intact relationship should, in their view, operate. Where does infidelity fit within family law?
As Australia is a “no-fault divorce” jurisdiction, emotionally distressing conduct during or at the end of relationship (such as adultery) is unlikely to have any impact in an Australian Court’s decision about the overall financial division of property.
The Court will not be more favourable to one party or another in property settlement proceedings on the basis that they were the faithful spouse or had acted in a way that they considered to be consistent with maintaining the relationship while the other was unfaithful and/or acted inappropriately. There is also no way to “sue” someone for breaking up a marriage or breaking off a relationship or engagement in Australia.
Now, in Australia, the only things that need to be proved to obtain a divorce are:
· That there was a valid marriage;
· That the parties to that marriage have been separated for at least 12 months; and
· That any children of the marriage are appropriately cared for by the parents.
Importantly, a divorce and a property settlement following the breakdown of a relationship are two very different things in Australia and can be dealt with separately and have different requirements and relevant factors, unlike in some countries where the two go hand in hand.
There are also other jurisdictions where there are grounds to take action against a third party who engages in adultery with a party to a marriage, such as some states of the United States of America, however this is not the case in Australia.
If adultery or another distressing or traumatic event was the catalyst for the breakdown of your relationship we recommend working with a psychologist or counsellor to assist you in working through the emotional damage and grief arising out of that event. There are a number of excellent professionals who we work with and are happy to refer you to that could assist in this situation.