Does Cheating Affect Divorce in Australia?

Feb 5, 2024

Divorce isn’t something most people think of when they get married.  So, when something like adultery, or cheating occurs in a relationship, most people don’t know what steps to take, is there punishment, or how something like “cheating” affects your divorce and/or property settlement in Australia.

If you know your legal position, it will help you be prepared for all the possible outcomes. The below article will help you gain an understanding of the impact “cheating” has on a property settlement in Australia (if at all). You should always be careful to seek legal advice from a family lawyer for personalised guidance.

How Cheating May Affect Your Divorce in Australia

While cheating may have an emotional impact on a relationship and may lead to divorce, it normally has no legal impact in Australia. Generally, it doesn’t matter why you separated, just that you have and how your joint assets should be divided. There are rare occasions where it does matter, so you should always seek legal advice about your particular circumstances.

In Australia, we implement a ‘no-fault’ approach to divorce. Divorce can only be achieved after 12 months of separation. The actual ground for divorce is the irretrievable breakdown of marriage, which is established by evidence being produced that the parties to a relationship have been living apart and separately for a continuous period of 12 months immediately before filing the application for divorce.

Separation can take place whilst the parties are still living under the same roof.

Property Settlement and Cheating

Property settlement is a separate process from a divorce. It involves the division of assets, which include, but are not limited to houses, money in the bank, cars, shares, superannuation, and more. It is very rare for cheating to have a legal impact on a property settlement.

However, if one party of a relationship, is found to have purchased assets for the person they were having an affair with, and used joint assets to do so, it is possible for a Court to undo those transactions, and if that is not possible, then the Court will the other party of a relationship a larger portion of the assets which remain.

Again, you should always seek legal advice about the particular circumstances of your case.

Parenting Arrangements and Cheating

The best interests of the child are paramount when making parenting arrangements – e.g. who the child spends time with, who they live with, who makes decisions for them, and more. Fundamentally, a child is entitled to enjoy a meaningful relationship with both parents, but there are occasions where that is not suitable and you seek legal advice about your particular circumstances.

Generally, cheating has no legal impact on parenting arrangements. That is not to say it won’t – for example if you have an affair with a parent of your child’s best friend, it may have a significant and lasting impact on the child’s relationship with her friend, and because of that, the child’s relationship with you. It may be talked about at their school, it may embarrass your child and it may cause them not to want to spend time with you.

Where two parents cannot agree on parenting arrangements, the court may intervene with a parenting order. A family lawyer can help guide you through the implementation of parenting orders.

Get Legal Advice

Navigating the turbulent waters of divorce in Australia, especially in the context of cheating demands a nuanced understanding of the legal landscape. The Family Law Act 1975 anchors divorce proceedings in a ‘no-fault’ framework, largely rendering cheating legally irrelevant in the dissolution of marriage and the division of property.

However, while infidelity does not generally influence divorce settlements, its ramifications may ripple through related aspects such as property division and parenting arrangements under certain conditions as described above. It’s imperative for individuals to approach these sensitive matters with caution, prioritising the welfare of any children involved and seeking professional legal guidance.

If you’re currently separated and looking for a divorce lawyer in Queensland, chat with the team at The Legal House. We are here to support you during this process and help you achieve the best outcomes for you and your family. Book a free consultation today.

Nick Harrison

Nick Harrison

Founder & Solicitor

Nick is passionate about family law, domestic violence, and wills and estates, Nick has been practising as a Solicitor of the Supreme Court of Queensland and the High Court of Australia since 2012.  He provides practical legal advice to his clients, using his unique blend of impeccable legal skills and real-life experience as a police officer, husband and father.

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