Infidelity and divorce in family law

Prior to the introduction of the Family Law Act 1975 in Australia, you were required to prove that your marriage had failed due to your spouse’s actions to obtain a divorce and infidelity was considered a valid ground for divorce. 

With the introduction of the Family Law Act 1975, Australia introduced a no-fault divorce system whereby you no longer need to prove your spouse was at fault for breaking down the marriage in order to obtain a divorce. 

Today, you only need to show the court that you have a valid marriage and that there has been an irretrievable breakdown of the relationship, evidenced by separation from your partner for at least 12 months.

In relation to property settlements, infidelity is only considered a factor if the cheating party has spent marital funds or assets recklessly or negligently to fund the affair. 

This includes, for example-paying for gifts and travels using matrimonial funds without the knowledge of the other partner. 

These funds may be considered waste and may be added back into the property pool as an attack. 

Add backs occur in family law property proceedings when the court adds funds back into the property pool to be divided. 

Any waste, dissipation or destruction of assets or financial resources will be taken into consideration. 

Acting recklessly and negligently with matrimonial assets will also be considered.