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Does Cheating During a Relationship Affect a Property Settlement?

Unlike some other countries, the Australian legal system does not place blame or seek to understand why a relationship has failed. The court will not consider whether there was any extra-marital relationship(s) that caused the relationship to break down nor any other reason as to why the relationship has failed. This holds true in respect to property matters as well as divorce proceedings, with both proceedings determined separately.

In respect to divorce proceedings, the court is only interested in whether the relationship has broken down beyond repair. This can be proven even if one spouse does not believe it to be the case. All that is required is a declaration made by one spouse that the parties have been living apart for a period of at least 12 months.

In respect to property proceedings, again, the court will not seek to attribute blame. The court will consider:

  • Whether it would be fair to make a property adjustment in respect of the couple;
  • What the net worth of the couple consists of (i.e. assets, liabilities and superannuation);
  • What contributions the spouses each made both during the relationship and following separation; and
  • Whether either spouse has any need moving forward. In this respect the court can consider factors such as the future care arrangements for the children, each parties’ respective age and health and the parties’ respective income and/or employment prospects.

Infidelity is not a factor to be taken into account when determining property proceedings. However, in some circumstances, the court may adjust the property settlement upon consideration of one spouse’s behaviour during the relationship. For example, in some cases, the court may find that a result of prolonged family violence, one party’s contributions (for example home duties, employment or rearing of the children) to the relationship were made more difficult. The court may also make an adjustment to one spouse if it is established that the other spouse has recklessly wasted assets of the relationship through actions such as gambling. These adjustments are discretionary and can add complexity to property proceedings. For this reason, it is recommended that parties’ seek independent legal advice. Contact Armstrong Legal.

Michelle Makela

This article was written by Michelle Makela

Michelle has over 15 years experience in the legal industry, working across commercial litigation, criminal law, family law and estate planning.  Michelle has been involved in all practice areas of the firm and in her personal practice has had experience in litigation at all levels (State and Federal Industrial Tribunals, the Supreme Court, Court of Appeal, the Federal Court, Federal...

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