How much am I entitled to in a divorce if my partner cheated on me?
If your partner has engaged in extramarital affairs, it’s not surprising that you’d want to make him or her pay for their indiscretions. But does an affair actually affect the financial outcome of your separation? In this post, our lawyers answer the commonly asked question: “How much am I entitled to in a divorce if my partner cheated on me?”
How much am I entitled to in a divorce if my partner cheated on me?
To answer this question, it’s helpful to start with a brief history lesson of divorce proceedings in Australia. Before 1975, marriages were considered contracts for the purpose of law. As a result, the court would only grant divorces if one of the partners was at fault for breaking the marriage contract. Some of the common ways a marriage contract might be broken included drunkenness, insanity, and yes, adultery. In fact, if either party had simply grown apart there are reports that they would “stage” examples” of cheating in order to be granted a divorce!
Divorce proceedings in Australia after 1975
All that changed in with the introduction of the ‘no-fault’ divorce and The Family Court system (including the Family Law Act) in 1975. Suddenly no evidence was required in order for a divorce to be granted. Which has meant, that for the almost 50 years since, the only grounds required for divorce was the irretrievable breakdown of marriage – which must be evidenced with a separation period of no less than 12 months.
What does cheating mean for divorce proceedings in 2022?
Okay, so you’ve just found out that your significant other has been living a lie and you’re ready to take him or her to the divorce lawyers and clean them out. Unfortunately, adultery does not generally greatly affect the division of assets, nor the amount of spousal maintenance to be paid out. One exception is if the court deems that through the course of the affair, you wasted the matrimonial assets recklessly or negligently.
So what does affect your financial entitlements post-divorce?
When assessing for spousal maintenance, the court will balance both the needs of the person making the application and the ability of the respondent to pay for their ex’s lifestyle.The court will consider a number of factors such as:
Your age
The state of your health
Your current income, investments, and other financial resources
What is a suitable and fair standard of living
If the marriage at any time affected your ability to earn an income
Some other FAQs about divorce entitlements when a partner cheats
To answer this question, it’s helpful to start with a brief history lesson of divorce proceedings in Australia. Before 1975, marriages were considered contracts for the purpose of law. As a result, the court would only grant divorces if one of the partners was at fault for breaking the marriage contract. Some of the common ways a marriage contract might be broken included drunkenness, insanity, and yes, adultery. In fact, if either party had simply grown apart there are reports that they would “stage” examples” of cheating in order to be granted a divorce!
All that changed in with the introduction of the ‘no-fault’ divorce and The Family Court system (including the Family Law Act) in 1975. Suddenly no evidence was required in order for a divorce to be granted. Which has meant, that for the almost 50 years since, the only grounds required for divorce was the irretrievable breakdown of marriage – which must be evidenced with a separation period of no less than 12 months.
When assessing for spousal maintenance, the court will balance both the needs of the person making the application and the ability of the respondent to pay for their ex’s lifestyle.The court will consider a number of factors such as:
Your age
The state of your health
Your current income, investments, and other financial resources
What is a suitable and fair standard of living
If the marriage at any time affected your ability to earn an income
Our lawyers often get asked many questions about financial entitlements during divorce proceedings – especially when a spouse has been unfaithful.Some of the most common ones include:
Does cheating affect an ex’s right to child custody?
What are some examples that the court might consider a cheating party to have ‘wasted’ matrimonial assets in a reckless or negligent way?
Do the same rules of property separation and financial entitlement apply to the breakdown of defacto relationships, as they do marriage?
New South Lawyers’ communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication.
To find out more, chat with a member of New South Lawyers' Family Law Team today.
