Divorce entitlements after adultery

Relationships and marriages can break down for many reasons. Adultery is a term used to describe the act of engaging in sexual relations with a person outside of a marriage or a de facto relationship, and is one of the common reasons people divorce in Australia. When adultery occurs within a marriage or a de facto relationship, it can have a significant impact on the relationship and, in many cases, lead to a separation or divorce. It is essential to understand the laws regarding divorce entitlements after adultery in Queensland, as this can impact the outcome of a divorce settlement. 
We share if and how adultery may impact entitlements following a divorce, and address some misconceptions. 

The History of Divorce in Queensland & Australia

Before the introduction of the Family Law Act 1975, couples seeking divorce in Australia had to prove "fault" to establish legal grounds for divorce. This meant that they had to provide evidence to show that the marriage had broken down due to reasons such as adultery, cruelty, desertion, or insanity. The legal system treated marriage as a contract, and proof of a breach of the contract was required to dissolve the marriage legally. However, the Family Law Act introduced a "no-fault" system for divorce, which meant that the reasons for the marriage breakdown were not taken into account when deciding property settlements, maintenance, or custody arrangements.

Misconceptions About Adultery and Property Settlements

One of the common misconceptions people have is that any divorce entitlements after adultery, such as property and financial settlements, are automatically impacted. Generally speaking, under current legislation in Queensland, adultery is not considered a factor when determining property settlements. Section 19 of the Family Law Act 1975 (Cth) provides that the court must consider various factors when deciding how property should be divided between parties, but adultery is not one of them.

Exceptions to the Rule

While adultery is not considered a factor when determining property settlements, there are a few exceptions to this rule. For example, if the adultery has had a direct impact on the financial circumstances of the relationship, then it may be taken into consideration when determining a property settlement. This may be the case where one partner has spent large amounts of money on the affair or the lover, such as buying the other person luxurious gifts or taking them on expensive holidays, which has caused financial hardship for the other partner.  Another instance is where one party has conducted themselves in a way designed to reduce the value of assets.
In such cases, the court may take into account the extent to which the misconduct has contributed to the property pool available for distribution. 

Child Custody Arrangements

It is important to note that adultery may have an impact on other aspects of a separation or divorce, such as child custody arrangements. The court will always put the best interests of the child first when making a decision, and the behaviour of the parents, including adultery, may be taken into account when determining child custody arrangements. Section 60CC of the Family Law Act 1975 (Cth) provides that the court must consider various factors when deciding what is in the best interests of the child. These factors include the nature of the relationship between the child and each parent, the extent to which each parent has fulfilled their responsibilities as a parent, and any other factor that the court considers relevant.

Spousal Maintenance

When it comes to spousal maintenance, the court may take into account the conduct of the parties, including adultery, when determining the amount of maintenance to be paid. This may be relevant where one party has significantly impacted the other party’s ability to earn a living as a result of their adultery. Section 72 of the Family Law Act 1975 (Cth) provides that the court may make an order for spousal maintenance if one party is unable to support themselves adequately and the other party has the capacity to pay.

Still Have Questions Regarding Divorce Entitlements After Adultery? 

Adultery may not be a key factor in determining property settlements in Queensland, but there are exceptions to this rule. The impact of adultery on the financial circumstances of the relationship may be taken into consideration when determining a property settlement or spousal maintenance. It may also have an impact on child custody arrangements. It is essential to seek the advice of a family lawyer to ensure that you understand your legal rights and divorce entitlements after adultery, and in any other circumstances.  If you are going through a separation or divorce, Pullos Lawyers can provide you with expert legal advice and support. Our experienced team of family lawyers have the knowledge and expertise to help you navigate the legal system and achieve a fair and reasonable outcome. Contact us today to schedule a consultation and find out how we can help you. 
Want to read more? Click here for achieving a property settlement through mediation, read our blog on how much a divorce costs in Australia, and how to prepare for a divorce when there are children involved.