It is commonly thought that someone who cheats on their spouse, and breaks the marriage as a result of their infidelity, should pay for their transgressions in a Divorce.
But the law doesn’t quite see it that way. In fact, infidelity doesn’t have any effect on the financial outcome of property settlement proceedings, unless there is some link between that conduct and the parties’ financial affairs.
If we were writing this a couple of generations ago, it would be a different story. Prior to the Family Law Act 1975, evidence of cheating could be used against the unfaithful party in proceedings.
However, the Act delivered a ‘no fault’ system. This change made the cause of marriage breakdowns – cheating included – irrelevant to the determination of any family law dispute.
The exception is where the infidelity might have an impact on the property pool, or the future split of those assets.
The best example is a relationship that has carried on for some time before the marriage breakdown. It might be the case where the unfaithful party has spent the family’s money on the affair, be it on extravagant meals, entertainment, gifts or holidays. This type of one-sided spending is known as ‘wastage’. It can be argued that the cheater’s ‘wastage’ on their affair should diminish their claim to the property pool.
The property settlement can also be affected if one of the parties has moved in with a new partner, prior to settlement. If the new relationship has enhanced their financial situation, for instance by owning their new home outright and thus negating the need to continue paying rent or a mortgage, this will be a factor in the Court’s reckoning.
One thing is certain in splits where infidelity is involved: the proceedings are more inclined to be run on emotion. This is understandable. The chastened party might be more likely to make the process harder and push for a bigger share than they are legally entitled. Conversely, the guilt of being unfaithful can force the other party into backing down more readily and selling themselves short.
In these volatile circumstances it is important to engage some form of detachment, to help identify the right choices amid emotions of anger, confusion and loss. Legal representation is a good way to achieve a crucial sense of impartiality and objectivity.
Tonkin Drysdale Partners now boasts the biggest Family Law practice on the Central Coast. The team consists of four experienced solicitors including Lee Pawlak who is an Accredited Specialist in Family Law.
If you need assistance, one of our experts would be delighted to help.