Can I Use My Spouse’s Infidelity Against Them In Family Law Proceedings?

In Australian family law, the issue of adultery, or infidelity, is often a concern for individuals going through separation or divorce. However, due to the no-fault divorce system established under the Family Law Act 1975 (Cth), the relevance and impact of adultery in these proceedings are limited. Here’s an overview of how infidelity is treated in family law:

No-Fault Divorce System

Australia operates under a no-fault divorce system, meaning the court does not consider the reasons for the breakdown of a marriage when granting a divorce. The sole ground for divorce is the irretrievable breakdown of the marriage, evidenced by a 12-month separation period.

Impact on Property Settlements

1. Irrelevance of infidelity: In property settlement proceedings, the court focuses on the financial and non-financial contributions of each party and their future needs. Infidelity is generally not considered relevant to these factors.

2. Contributions and Needs: The court assesses contributions such as income, homemaking, and parenting, as well as the future needs of each party, including age, health, and earning capacity. Infidelity does not typically impact these assessments.

However, a new partner’s financial support can potentially impact a property settlement by influencing the court’s assessment of a person’s future financial needs, potentially reducing the share of assets awarded to them if their new partner significantly contributes to their lifestyle or finances.

Impact on Parenting Arrangements

1. Best Interests of the Child: In matters concerning parenting arrangements, the court’s primary consideration is the best interests of the child. Infidelity by a parent is not directly relevant unless it can be shown to impact the child’s welfare.

2. Parental Conduct: While the conduct of a parent may be considered if it affects their ability to care for the child, infidelity alone is unlikely to be a determining factor.

Exceptions and Considerations

• Financial Misconduct: If infidelity involves financial misconduct, such as dissipating marital assets to support an extramarital relationship, it may be relevant in property settlement proceedings.
• Emotional Impact: While the emotional impact of infidelity can be significant, it does not typically influence legal outcomes in family law proceedings.

While infidelity can have profound personal and emotional consequences, it generally does not play a significant role in family law proceedings in Australia due to the no-fault divorce system. The focus remains on equitable financial settlements and the best interests of any children involved. Legal advice can help parties understand their rights and obligations in these matters.

If you require assistance with your Family Law matter, reach out to our team of Sutherland Shire Family Lawyers today on 8525 2700; click here to request an appointment, or click on the Book Now button below.

Our experienced team of Family Law Solicitors include Riccarda Stock, Nicole Quirk, Shweta Kumar, and Nikita Ward.

Article by Nikita Ward
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