Infidelity is one of the key causes of divorce in Australia. When going through the separation and divorce process there can be confusion around whether or not the Court will take the affair into consideration when making decisions about your settlement.
As family lawyers we are often asked about the impact of infidelity on the family law process particularly by the party who feels aggrieved. This article will cover what you need to know about divorce settlements and affairs. It will also give you some points to consider when handling certain situations in your separation.
Affairs and Divorce Settlements. Does adultery affect a financial settlement?
The direct answer to this question is no. Prior to the Family Law Act 1976 coming into effect, adultery and desertion did matter and had to be proven. The problem with that approach was that a lot of it ended up being contrived. Couples would get together, and those who wanted to get a divorce would find ways to to establish one of the grounds. Since the advent of the Family Law Act in 1976, family law has been working in a ‘no fault’ system. That is, in our current system, adultery doesn’t have negative financial consequences. Although there are areas where it can be relevant.
Where adultery can affect a financial settlement
An example of adultery impacting a financial settlement is, if someone has been maintaining another partner on the side. For example, they may have rented an apartment for them or given them a vehicle. It is this type of affair when you can actually quantify the cost of the other relationship and say this cost ‘x’ amount a year to maintain your other partner and it has been going on for ‘x’ years.
With this type of situation, there can be arguments for some sort of financial adjustment in the property settlement because of the financial cost of the affair.
Where can adultery affect parenting matters?
The other point where affairs are taken into consideration is in parenting matters. If an infidelity becomes a new relationship, then that needs to be factored into how parenting arrangement will work. We often hear clients say their ex-spouse can’t have the children if the new partner is going to be there, at least early on. Or that they can have the children but aren’t allowed to introduce the children to the new partner for say, 12 months.
This, of course, requires a degree of common sense and courtesy given the need to have an ongoing co-parenting relationship for years to come. What people need to do is consider things from the other person’s perspective by putting the shoe on the other foot and think about how they would feel if they were the one who had been deceived. It is an area fraught with high emotions and we often refer parties to counselling to address these sorts of issues.
Considerations for people in a divorce where there has been adultery
Keep in mind that the introduction of another partner needs to be managed with a degree of common sense regarding the impact it is going to have on the children. If children are introduced to various partners of a parent, or introduced to a new partner to soon after separation, it can cause them confusion and negatively impact them emotionally.
So consider the timing and how a new partner will be introduced. How to approach it will also depend on the age of the children. We find that older children will fall into one of two categories. They are either going to be indifferent or they jump on to the morality of it and may be angry at the parent who had the affair or even reject them initially. Sometimes it is a good idea for parents to consult a therapist to talk about when to tell them and how to approach this conversation with each of their children.
It is also important to understand that children will feel a great deal of sympathy for the parent who wasn’t having an affair. They will see one parent hurt and naturally be protective of them in the circumstances.
The grieving parent may also struggle to shield their own hurt from the children. Naturally some children will try to take on the responsibility of propping up the aggrieved parent, which isn’t fair on them. What both parents need to focus on is to always look to minimise the impact on the children by not involving them directly in their own conflict.
How an affair will affect your divorce settlement
An extra marital relationship, if it is continued, will be relevant to parenting matters. The relationship could affect your financial settlement if it had a significant financial consequence. Expenses attributed to maintaining the other person can be relevant and can be taken into account but the actual adultery itself has no consequence.
If you are separating from your partner and adultery has been involved, it is best to speak with a specialist family lawyer as soon as possible. You can have your immediate concerns addressed and move forward with some clarity about the process ahead of you.
Phillips Family Law is an award winning Family Law practice serving clients across Australia and abroad. Regardless of where you are in your decision making process, we can make you aware of your options. To discuss your situation confidentially phone (07) 3007 9898 or secure a time by clicking here.
Disclaimer: The content in this article provides general information however it does not substitute legal advice or opinion. Information is best used in conjunction with legal advice from an experienced member of our team.